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A   DIGEST 


OF  THE  LAW  OF 


LIBEL    AND    SLANDER, 


WITH   THE 


EVIDENCE,  PROCEDURE,  AND   PRACTICE,  BOTH  IN 
CIVIL  AND  CRIMINAL   CASES, 


AND 


PRECEDENTS    OF    PLEADINGS. 


BY 

W.  BLAKE   ODGERS,  M.A,  LL.D., 

LATE   SCHOLAR   AXD    LAW   STUDENT   OF   TRINITY    HALL,    CAMBRIDGB 

OF  THE  MIDDLE  TEMPLE  AND  THE  WESTERN  CIRCUIT, 

BARRISTER-AT-LAW. 


FIRST    AMERICAN    EDITION. 


By  MELVILLE   M.   BIGELOW,   Ph.D. 


BOSTON: 
LITTLE,    BROWN,   AND    COMPANY. 

1881. 


T 
OdXSU 


Entered  according  to  Act  of  Congress,  in  the  year  1881,  by 

Little,  Brown,   &   Co., 
In  the  Office  of   the  Librarian  of  Congress,  at  Wasliington. 


Univf.rsity  Press: 
John  WiLst).N  a.nu  Son,  Cambridge. 


TO 

ARTHUR    CHARLES,   Esq.,  Q.C, 

KECORDER   OF   BATH, 
IN  ACKNOWLEDGMENT   OF   MANY   KINDNESSES, 

I  Dedicate  this  Book. 


776936 


EDITOR'S   PUEFACE. 


The  excuse,  if  one  be  needed,  for  another  book  on 
Libel  and  Slander,  and  that  an  English  one,  may  be 
found  in  the  excellence  of  the  author's  work.  A  clear 
head  and  a  skilled  hand  are  to  be  seen  throughout.  And 
this,  with  the  fui'ther  fact  that  the  volume  is  a  fresh  expo- 
sition of  the  latest  phase  of  the  law,  made  tmo  ictu  and 
not  piecemeal,  is  sufficient  to  justify  the  editor  in  asking 
for  it  a  place  alongside  the  valuable  work  of  Mr.  Towns- 
hend. 

The  work  too  is  in  the  editor's  opinion  extremely 
valuable  in  the  part  more  peculiarly  English.  The  rules 
of  practice,  the  forms  and  precedents,  and  the  details 
concerning  the  conduct  of  causes,  will  prove  almost  as 
suggestive  here  as  in  England,  whether  in  aid  of  liti- 
gation or  of  legislation  ;  and  the  editor  does  not  know 
where  so  much  valuable  information  of  the  kind  may 
be  obtained  within  convenient  limits. 

The  American  cases  are  cited  as  late  as  September,  so 
far  as  the  Reports  were  at  hand  at  that  time. 

Boston,  Sept.  16,  1881. 


PREFACE. 


This  book  has  been  called  "  A  Digest  of  the  Law  of  Libel  and 
Slander,"  because  an  attempt  has  been  made  to  state  the  law  on 
each  point  in  the  form  of  an  abstract  proposition,  citing  the 
decided  cases  in  smaller  type  merely  as  illustrations  of  that 
abstract  proposition. 

Every  reported  case  decided  in  England  or  Ireland  during  the 
last  fifteen  years  has  been  noticed.  Every  case  reported  in  Eng- 
land during  this  century  has,  I  believe,  been  considered  and  men- 
tioned, unless  it  has  either  been  distinctly  overruled  or  has  become 
obsolete  by  a  change  in  the  practice  of  the  Courts  or  by  the  repeal 
of  some  statute  on  which  it  depended.  The  earlier  cases  have 
been  more  sparingly  cited,  but  I  think  no  case  of  importance  since 
1558  has  been  overlooked.  The  leading  American  decisions  have 
also  been  referred  to,  and  whenever  the  American  law  differs  from 
our  own,  the  distinction  has  been  pointed  out  and  explained. 

Canadian  and  Australian  decisions  have  also  been  quoted,  when- 
ever the  English  law  was  doubtful  or  silent  on  the  point.  The 
cases  have  been  brought  down  to  the  early  part  of  January,  1881. 

It  would  be  of  but  little  use  to  place  all  these  decisions  before  the 
reader  and  leave  him  to  draw  his  own  conclusions.  A  huge  col- 
lection of  reported  cases  piled  one  on  the  top  of  the  other  is  not 
a  legal  treatise,  any  more  than  a  tumbled  pile  of  bricks  is  a  house. 
I  have  throughout  attempted  to  strike  a  balance,  as  it  were,  and 
state  the  net  result  of  the  authorities.  But  this  is  a  process 
requiring  the  greatest  care  and  much  expenditure  of  time. 
When  I  commenced  this  book  in  1876,  I  did  not  at  all  realize 
the  amount  of  labor  which  was  requisite  in  order  to  ascertain  the 
law  and  state  it  clearly  in  an  abstract  form. 


Vlll  PREFACE. 

It  is  often  very  difficult  to  determine  whether  or  no  a  decision 
has  ceased  to  be  a  binding  authority :  our  judges  in  the  present 
day  seldom  expressly  overrule  a  previous  decision  ;  they  comment 
on  it,  distinguish  it,  explain  it  away,  and  then  leave  it  with  its 
lustre  tarnished,  but  still  apparently  a  binding  authority  should 
identically  the  same  facts  recur.  There  is  no  rule  which  decides 
how  long  the  process  of  "  blowing  upon  "  a  case  must  continue 
before  it  may  be  considered  overruled.  Whenever  such  a  case 
has  been  cited,  I  have  always  referred  the  reader  to  the  places 
where  it  has  been  criticised,  adding,  however,  my  own  opinion  as 
to  the  effect  of  such  criticism  on  the  authority  of  the  case.  And 
in  man}'  places  it  has  been  necessary  to  review  the  cases  in  a  note, 
showing  how  they  bear  one  on  another,  and  justifying  the  view 
which  I  have  taken  of  their  result.  Such  notes  are  printed  in 
a  medium  type,  smaller  than  that  devoted  to  the  abstract  propo- 
sitions of  the  Digest,  larger  than  the  Illustrations  which  follow 
them. 

In  thus  ascertaining  the  principles  underlying  the  various  de- 
cisions, no  assistance  whatever  has  been  derived  from  any  previous 
book  on  the  Law  of  Libel  and  Slander.  No  such  book  has  been 
written  on  the  same  plan.  For  all  conclusions  of  law  herein  stated, 
I  am,  of  course,  solely  responsible. 

My  object  throughout  has  been  to  save  the  reader  trouble.  All 
the  references  to  every  decision  have  always  been  cited.  All  con- 
siderations of  style,  &c.,  have  been  sacrificed  to  clearness  and 
convenience.  I  have  abruptly  changed  from  the  third  to  the  first 
or  second  person,  whenever  there  was  any  possibility  of  mis- 
taking the  antecedent  of  any  pronoun.  It  is  sometimes  difficult 
to  follow  A.,  B.,  and  C,  through  a  long  sentence  :  it  is  easier 
to  distinguish  between  "  I,"  "  you,"  and  "  he."  Again,  when- 
ever I  have  been  in  doubt  whether  the  law  on  a  particular  subject 
should  be  noticed  in  one  chapter  or  in  another,  I  have  invari- 
ably stated  it  in  both.  Thus,  nearly  the  whole  of  the  chapter  on 
Malice  will  be  found  scattered  up  and  down  the  long  chapter  on 
Privilege.  So,  too,  for  the  sake  of  practical  convenience,  all  the 
cases  as  to  the  hmuendo  and  the  construction  to  be  put  on  De- 


PREFACE. 


famatory  Words,  have  been  collected  in  Chapter  III.  In  Chapter 
XII.  all  the  law  as  to  Husband  and  Wife,  Principal  and  Agent, 
&c:,  &c.,  has  been  gathered  together  under  the  somewhat  stilted 
but  convenient  title  of  The  Law  of  Persons.  A  separate  chapter 
has  been  devoted  to  the  subject  of  Costs.  In  the  chapters  on 
Blasphemous  and  Seditious  Words,  I  have  not  hesitated  to  ex- 
press freely  my  conviction  that  many  of  the  early  decisions  would 
not  be  followed  in  the  present  day. 

One  difficulty  connected  with  the  subject-matter  of  the  book 
I  have  endeavored  to  avoid  by  restoring  the  word  "  malice " 
to  its  simple  and  ordinary  meaning.  The  distinction  between 
"  maUce  in  law "  and  "  malice  in  fact "  is  of  comparatively 
recent  origin.  "  Malice  in  law  "  is  the  vaguest  possible  phrase  ; 
it  merely  denotes  "absence  of  legal  excuse."  The  plaintiff  is 
never  called  on  to  prove  the  existence  of  "  malice  in  law  ; "  the 
defendant  has  to  show  the  existence  of  some  legal  excuse.  In 
short,  to  say  that  a  libel  must  be  published  "  maliciously  "  means 
merely  that  it  must  be  published  "  on  an  unprivileged  occasion." 
I  have  therefore  abandoned  this  technical  and  fictitious  use  of  the 
word.  Throughout  this  book  (to  use  the  words  of  Brett,  L.  J., 
in  Clark  v.  Mohjneux,  see  p.  266)  " '  Malice '  does  not  mean 
'malice  in  law,'  a  term  in  pleading,  but  actual  malice,  that  which 
is  popularly  called  malice." 

The  second  part  of  the  book  is  devoted  to  Practice,  Proced- 
ure, and  Evidence.  I  have  fought  both  a  civil  action  and  a  crim- 
inal trial  through  from  beginning  to  end,  giving  practical  hints  to 
each  side.  Chapter  X.  is  in  short  a  manual  of  the  practice  in  an 
action  of  tort  under  the  Judicature  Act.  I  have  taken  up  the 
subject  at  an  earlier  point  than  is  usual  in  law  books,  and  have 
submitted  to  the  plaintiff  certain  matters  which  he  should  care- 
fully consider  before  he  issues  his  writ  (p.  449). 

In  the  Appendix  will  be  found  a  full  collection  of  Precedents 
of  Pleadings,  both  in  Civil  and  Criminal  cases.  Some  are  drawn 
from  the  reports ;  others  are  hypothetical  cases  of  my  own 
invention  ;  but  the  majority  are  pleadings  in  actions  in  which 
friends  of  mine,  or  I  myself,  have  been  professionally  engaged. 


X  PREFACE. 

In  June,  1880,  appeared  the  Report  of  the  Select  Committee 
of  the  House  of  Commons  appointed  to  inquire  into  the  Law  of 
Newspaper  Libel.  I  have  ventured  to  deal  seriatim  with  the  three 
recommendations  contained  in  this  Report,  and  to  express  my 
opinion  thereon  (pp.  261,  391,  531).  A  copy  of  the  Report  will 
be  found  in  Appendix  B.  (p.  662). 

In  conclusion,  I  have  to  acknowledge  my  great  obligation  to 
my  learned  friend,  Mr.  Wurtzburg,  of  Lincoln's  Inn,  who  has 
kindly  revised  the  proofs  of  this  book,  added  all  the  references 
to  the  various  reports,  and  prepared  the  elaborate  Table  of  Cases 
at  the  commencement  of  the  volume. 

W.  Blake  Odgers. 

5,  Hare  Court,  Temple,  E.  C. 
February,  1881. 


TABLE  OF  CONTENTS. 


PAGE 

TABLE  OF  CASES xxi-xlv 

TABLE  OF  STATUTES  CITED xlvii-xlix 

TABLE  OF  RULES  AND  ORDERS  CITED 1-lii 


PART  I. 

A  DIGEST  OF  THE  LAW  OF  LIBEL  AND  SLANDER. 


CHAPTER  I. 

INTRODUCTORY 1-16 

Definitions 1 

Distinction  between  Libel  and  Slander 3 

Motive  Immaterial,  save  on  the  Question  of  Damages 5 

Acts  injurious  to  Reputation 8 

"Liberty  of  the  Press  "  defined 10 

History  of  tlie  Censorship  of  the  Press ib. 

Injunction  to  Restrain  a  Libel  will  not  be  granted 13 


CHAPTER  II. 

DEFAMATORY   WORDS 17-92 

Definitions 17 

Injury  to  the  Reputation  the  gist  of  the  Action 18 

PART  L  — LIBEL. 

Libel  defined 21 

Libels  on  Persons  in  Ofiice 27 

Libels  on  Professional  Men 29 

Libels  on  Traders 30 

Libels  on  Traders'  goods 32 

Fair  and  bond  fide  Comment  on  Matters  of  Public  Interest 34 

Criticism  defined  and  distinguished  from  Defamation 36 

Malicious  and  Unfair  Attacks 38 


Xll  TABLE   OF   CONTENTS. 

What  are  Matters  of  Public  Interest 41 

Mkirs  of  State 42 

Admiuistratiou  of  Justice 44 

Public  lustitutious  and  Local  Authorities 46 

Ecclesiastical  Affairs 47 

Books,  Pictures,  &c 48 

Theatres,  Concerts  and  other  Public  Entertainments 49 

Other  Appeals  to  the  Pubhc 50 

PART  II.  — SLANDER. 

I,  Words  imputing  an  Indictable  OfFence 54 

Early  Cases  on  this  Subject 58 

The  Charge  must  be  Specific  and  Precise 60 

The  Crime  imputed  must  be  possible 61 

II.  Woi'ds  imputing  a  Contagious  Disease 62 

III.  Words  spoken  of  the  Plaintiff  in  the  way  of  his  Office,  Profession, 

or  Trade 64 

Such  Words  must  affect  him  in  such  Office,  Profession,  or  Trade     .  65 

Imputation  of  Professional  Ignorance  or  Unskilfulness  ....  67 
Plaintiff  must  be  carrying  on  such  Trade,  &c.,  at  the  time  he  is 

Defamed 69 

Words  imputing  Waut  of  Integrity  to  any  one  holding  an  Office 

of  Trust 70 

Words  concerning  Clergymen 72 

-Words  couceruiug  Barristers,  Solicitors,  &c 74 

Words  concerning  Physicians  and  Surgeons 75 

Words  affecting  Traders  in  the  way  of  tlieir  Trade 77 

Imputations  of  Insolvency 78 

Imputations   of  Dishonesty  and  Fraud  in  the  Conduct  of  their 

Trade 79 

IV.  Words  Actionable  only  by  reason  of  Special  Damage 82 

Words  imputing  Immorality 83 

Words  imputing  Unchastity 84 

Unsatisfactory  State  of  the  Law  on  this  point 86 

All  Words  causing  Special  Damage  are  Actionable 87 

CHAPTER  III. 

CONSTRUCTION  AND   CERTAINTY 93-132 

What  Meaning  the  Speaker  intended  to  convey  is  immaterial     ....  93 

Libel  or  no  Libel  is  a  question  for  the  Jury 94 

Duty  of  the  Judge 94 

Words  not  to  be  construed  in  mitiori  sensu 95 

Jury  to  consider  the  Words  as  a  whole 98 

When  Evidence  may  be  given  of  other  Defamatory  Publications  by  De- 
fendant of  Plaintiff   99 

Of  the  Innuendo 100 

The  Words  must  be  set  out  verbatim,  in  the  Statement  of  Claim     .     .     .  101 

1.  Words  clearly  Defamatory 105 

'2.  "Words  joW«a/aaV  Defamatory 107 


TABLE   OF   CONTEKTS.  XIU 

3.  Neutral  Words 109 

4.  Words  prima /acie  Innocent lliJ 

5.  Words  clearly  lunoceut IIG 

Certainty.     Early  Teclmicalities 118 

Certainty  of  the  Imputation 120 

Criminal  Charges 121 

Indirect  Imputations 125 

Certainty  as  to  Person  Defamed 127 


CHAPTER  IV. 

SO  AND  ALUM  MAGNATUM 133-136 

St,atutes 133 

What  Words  are  included  therein 135 


CHAPTER  V. 

SLANDER  OE  TITLE,  OE  WORDS  CONCERNING  THINGS  .     .  137-149 

DeGnition 137 

I.  Slander  of  Title  proper 138 

Actionable,  if  words  false  and  malicious,  and  if  special  damage  be 

proved ib. 

Proof  of  Malice 142 

II.  Slander  of  Goods  Manufactured  or  Sold  by  another 145 

Other  Words  producing  Special  Damage 148 

CHAPTER  VI. 

PUBLICATION 150-168 

Definition  of 150 

Plaintiff  must  Prove  a  Publication  by  the  Defendant  in  fact      ....  153 

Publication  per  alium 155 

Publication  in  a  Newspaper 157 

Repetition  of  a  Slander 161 

Naming  your  Authority  now  no  Defence 162 

Rule  that  every  one  Repeating  a  Slander  becomes  an  Independent  Slan- 
derer       166 

Exceptions  to  this  Rule 167 

CHAPTER  VII. 

JUSTIFICATION 169-181 

Onus  of  Proving  Words  true  is  on  the  Defendant 169 

The  whole  Libel  must  be  Proved  true ib. 

The  Rule  applies  to  all  Reported  Speeches  or  Repetitions  of  Slander  .     .  173 

Justification  must  be  Specially  Pleaded 177 

Justification  in  a  Criminal  Case 178 

Roman  Law  as  to  Truth  of  Libel 180 


XIV  TABLE   OF   CONTENTS. 

CHAPTER  VIII. 

PRIVILEGED   OCCASIONS 182-263 

Defence  that  Words  were  spokea  ou  a  Privileged  Occasion 182 

Occasions  Absolutely  Privileged 183 

Occasions  in  -which  the  Privilege  is  Qualified ib. 

The  Judge  to  Decide  wLetlier  Occasion  is  Privileged  or  not      ....     185 

PART  I. 

OCCASIONS  ABSOLUTELY  PRIVILEGED 185-196 

(i)  Parliamentary  Proceedings 186 

(ii)  Judicial  Proceedings 188 

Words  Spoken  by  a  Judge ib. 

Woi'ds  Spoken  by  Counsel 190 

Words  Spoken  by  a  Witness 191 

(iii)  Naval  and  Military  Affairs 194 

PART  II. 

QUALIFIED   PRIVILEGE 196-263 

Cases  of  Qualified  Privilege  classified 196 

I.  Where  circumstances  cast  upon  the  Defendant  the  duty  of 
Making  a  CoiiMUNiCATioN. 

A.  Communicatiom  made  in  pursuance  of  a  Duti/  owed  to  Society     .     .     198 
Duty  may  be  Moral  or  Social ib. 

(i)  Characters  of  Servants 200 

(ii)  Other  Confidential  Communications  of  a  Private  Nature. 

{a)  Answers  to  Confidential  Inquiries 203 

{b)  Confidential  Communications  not  in  answer  to  a  pre- 
vious luquiry 207 

{c)  Communications  made  in  discharge  of  a  duty  arising 
from  a  Confidential  Relationship  existing  between 

the  parties 209 

(i/)  Information  volunteered  when  there  is  no  Confiden- 
tial Relationship  existing  between  the  Parties  .     .     213 

Difficulty  of  the  Question 215 

(iii)  Information  given  to  any  PubUe  Officer  imputing  Crime  or 

Misconduct  to  others 220 

Such  Officer  must  have  some  Jurisdiction  to  entertain  Com- 
plaint    223 

B.  Communications  made  in  Self-Defence. 

(iv)  Statements  necessary  to  protect  Defendant's  private  In- 
terests   225 

(v)  Statements  provoked  by  a  previous  attack  by  Plaintiff  on 

Defendant 228 

Statements  invited  by  the  Plaintiff 230 

n.  Where  the  Defendant  has  an  Interest  in  the  Subject-matter 
OF  THE  Communication,  and  the  Person  to  whom  the  Com- 
munication IS  made,  has  a  Corresponding  Interest  .     .     .     233 

Where  a  large  Body  of  Persons  are  interested 237 

If  Strangers  present,  the  Privilege  will  be  lost 239 


TABLE   OF   CONTKNTS.  XV 

in.  Privileged  Reports. 

(i)  Reports  of  Judicial  Proceedings 243 

Matters  coram  nonjadice 244 

Reports  not  privileged 249 

Reports  must  be  accurate 250 

No  Comments  should  be  interpolated 254 

An  accurate  Report  may  still  be  malicious 256 

(ii)  Reports  of  Parliamentary  Proceedings 257 

(iii)  Other  Reports 259 

Suf^^estion  of  the  Select  Committee  of  the  House  of  Com- 

261 


mous 


CHAPTER  IX. 

MALICE 264-288 

Intention  of  Defendant  as  a  rule  immaterial 264 

Material  when  the  Occasion  is  one  of  Qualified  Privilege 266 

Onm  of  proving  Malice  lies  on  the  Plaintiff 269 

I.  Extrinsic  Evidence  of  Malice 271 

Former  publications  by  Defendant  of  Plaintiff 272 

That  the  Words  are  false  is  alone  no  evidence  of  Malice      ....  274 
II.  Evidence  of  Malice  derived  from  the  Mode  and  E.x.tent  of  Publication, 

the  Terms  employed,  &c 277 

(i)  Where  the  Expressions  employed  are  exaggerated  and  uu- 

warrantable ;  but  there  is  no  other  Evidence  of  Malice    .  279 

(ii)  Where  the  Mode  and  Extent  of  Publication  is  Excessive     .  282 

Communications  volunteered 286 


CHAPTER  X. 

DAMAGES 289-333 

General  and  Special  Damage  Defiued  and  Distinguished 289 

I.   General  Damages 291 

General  Loss  of  Custom 293 

II.  Ecidencefor  the  Plaintiff  in  Aggravation  of  Damages. 

(i)  Malice 296 

(ii)  Extent  of  Publication 298 

(iii)  Plaintiff's  Good  Character ib. 

III.  Ecidence  for  the  Defendant  in  Mitigation  of  Damages. 

(i)  Apology  and  Amends 299 

(ii)  Absence  of  Malice 301 

Conflicting  Cases  on  this  Point 303 

(iii)  Evidence  of  the  Plaintiff's  Bad  Character      .....  304 

(iv)  Plaintiff's  previous  Conduct  in  provoking  the  Publication  306 

(v)  Absence  of  Special  Damage 308 

rV.  Special  Damage  where  the  words  are  not  actionable  per  se  .     .     .     .  ib. 

Wiiat  constitutes  Special  D.image •  309 

Special  Damage  must  be  specially  pleaded 313 

Special  Damage  subsequently  arising 317 

V.  Special  D.rmnge  where  the  words  are  actionable  "^tv  s& 318 

VI.  Remoteness  of  Damages 321 


XVI  TABLE    OF   CONTENTS. 

Damage  resulting  to  the  Husband  of  the  Female  Plaintiff.     .     .     .  323 

Damage  caused  by  the  act  of  a  Third  Party 325 

Not  essential  that  such  Third  Person  should  believe  the  Charge      .  327 

Wrongful  and  Spontaneous  Act  of  a  Third  Person 328 

Originator  of  a  Slander  not  hable  for  Damage  caused  by  its  repeti- 
tion      329 

Exceptions  to  this  Rule 331 

CHAPTER  XI. 

COSTS 334-343 

Costs  now  follow  the  Event 334 

All  early  Statutes  as  to  Costs  repealed  by  Judicature  Act 335 

Application  to  deprive  successful  Plaintiff  of  Costs 336 

Costs  of  New  Trial 338 

Apportionment  of  Costs  of  Issues ib. 

Costs  after  Payment  in  Court 3iO 

Costs  of  Counterclaim 341 

Costs  in  Criminal  Proceedinsrs 343 


CHAPTER  Xn. 

THE    LAW    OF    PERSONS.  IN    BOTH    CIVIL    AND   CRIMINAL 

CASES 344-372 

1.  Husband  and  Wife 345 

Claim  by  Husband  for  Words  defamatory  of  Wife 347 

Married  Woman  Defendant 350 

Criminal  Liability  of  a  Married  Woman 351 

2.  Infants 352 

3.  Lunatics 353 

4.  Bankrupts 354 

5.  Receivers 355 

'      6.  Executors  and  Administrators ib. 

7.  Aliens 356 

8.  Master  and  Servant  —  Principal  and  Agent 353 

Master's  Commands  no  Defence 359 

Principal  liable  for  Words  spoken  by  his  Authority 360 

Ratification 361 

Criminal  Liability  of  Master  or  Principal 362 

9.  Partners 365 

10.  Corporations  and  Companies 367 

11.  Otlier  Joint  Plaintiffs 369 

12.  Jomt  Defendants 370 


CHAPTER  XHI. 

CRIMINAL  LAW • 373-393 

Illegality  of  Contracts  as  to  Libellous  Matter 374 

I.  Criminal  Remedy  by  Indictment 375 

Special  Intent,  when  necessary 376 


TABLE    OF   CONTENTS.  XVll 

Punishment  at  Common  Law 37S 

Statutes 397 

II.  Criiiiinal  Eemedy  by  Information 380 

Libels  on  Foreign  Ambassadors,  &c 3^3 

III.  Law  Common  to  all  Criminal  Cases iO. 

Publication  of  a  Libel  by  one  unconscious  of  its  Contents  ....  384 

Criminal  Liability  of  an  Employer 385 

Justification  not  permitted  at  Common  Law 388 

Justification  under  Lord  Campbell's  Act 389 

Considerations  as  to  Criminal  Proceedings  for  Libel 390 

Suggestion  of  the  Select  Committee  of  the  House  of  Commons  ....     391 


CHAPTER  XIV. 

BLx\SPHEMOUS  WORDS 394-403 

Blasphemous  Words  defined 394 

Intent  to  bring  Religion  into  Contempt 395 

Honest  Advocacy  of  Heretical  Opinions 390 

Justification  not  allowed 398 

Statutory  Provisions 400 

Jurisdiction  of  Ecclesiastical  Courts 402 


CHAPTER  XV. 

OBSCENE  WORDS 404-408 

Test  of  Obscenity 404 

Summary  Proceedings  under  20  &  21  Vict.  c.  83 405 


CHAPTER  XVI. 

SEDITIOUS   WORDS 409-448 

Seditious  Words  defined 409 

Treasonable  Words 410 

Words  Defamatory  of  the  Sovereign  himself 413 

Truth  no  Defence .  414 

Words  Defamatory  of  the  King's  Ministers 415 

Words  tending  to  Subvert  the  Government 418 

Words  Defamatory  of  the  Constitution ■     .     .     .     .  419 

Latitude  allowed  to  Political  Writers 420 

Words  inciting  to  Disaffection  and  Riot 421 

Words  Defamatory  of  either  House  of  Parliament 422 

Commitment  for  Contempt 423 

Colonial  Legislative  Bodies 425 

Words  Defamatory  of  the  Superior  Courts  of  Justice 420 

Contempt  of  Court 428 

Wilful  Disobedience  to  an  Order  of  Court 431 

Attachment  and  Committal 433 

Colonial  Courts  of  Justice 438 

Words  Defamatory  of  Inferior  Courts  of  Justice 440 

b 


Xviii  TABLE   OF   CONTENTS. 

,    Contempt  of  an  Inferior  Court  of  Record 442 

Sureties  for  Good  Behavior 444 

Statutory  Powers  of  Inferior  Courts 445 

Ecclesiastical  Courts 448 


PART  II. 

PRACTICE,   PROCEDURE,   AND   EVIDENCE. 


CHAPTER  XVII. 

PRACTICE  AND   EVIDENCE   IN   CIVIL   CASES 449-570 

Considerations  before  Writ 449 

Parties 452 

Letter  before  Action ;  Notice  of  Action    .     .     .     .* 453 

Choice  of  Court if'- 

District  Registry 454 

Statute  of  Limitations 455,  490 

Former  Proceedings 456 

Joinder  of  Causes  of  Action 458 

Indorsement  on  Writ 459 

Service  of  the  Writ 460 

Appearance 462 

Judgment  by  Default 463 

Matters  to  be  considered  by  the  Defendant 465 

Security  for  Costs 466 

Remitting  the  Action  to  the  County  Court 468 

Statement  of  Claim 469 

Venue 474 

Instructions  for  Statement  of  Defence 475 

Demurrer ib. 

Particulars 479 

Statement  of  Defence 480 

Traverses 481 

Bond  Fide  Comment.     No  Libel 483 

Privilege 484 

Justification 485 

Apology 487 

Accord  and  Satisfaction 489 

Previous  Action 490 

Other  Defences ib. 

Payment  into  Court 491 

Counterclaims 494 

Judgment  in  Default  of  Pleading 495 

Reply 496 

Rejoinder 498 

Amendment  of  Pleadings ib. 

Default  in  Pleading 500 


T^IBLE   OF   CONTENTS.  XIX 

Interrogatories 500 

Striking  out  luterrogatories 509 

Answers  to  Interrogatories 511 

Further  and  Better  Answers 515 

Discovery  of  Documents ib. 

Further  aud  Better  Affidavit 519 

Inspection  of  Documents 520 

Default  in  making  Discovery 522 

Notice  of  Trial.     Entry  for  Trial ib. 

Advice  on  Evidence 524 

Examination  of  Witnesses  before  Trial 526 

SpecialJury 528 

Change  of  Venue ib. 

Trial 529 

Proof  of  the  Plaintiff's  Special  Character 530 

Proof  of  Pubhcation 531 

Proof  of  the  Libel 535 

Proof  of  the  Speaking  of  the  Slander 537 

Evidence  as  to  the  Innuendo 538 

Proof  that  the  Words  refer  to  the  Plaintiff 540 

Proof  that  the  Words  were  spoken  of  the  Plaintiff  in  the  way  of  his  Office, 

Profession,  or  Trade 541 

Evidence  of  Malice ib. 

Evidence  of  Damage 542 

Nonsuit 543 

Evidence  for  the  Defendant 545 

Withdrawing  a  Juror 550 

Sumining-up ib. 

Verdict 551 

Judgment 552 

Costs 553 

Proceedings  after  Judgment 554 

Application  for  a  New  Trial 556 

Proceedings  in  the  Court  of  Appeal 561 

County  Court  Proceedings 565 

Other  Inferior  Courts 569 


CHAPTER  XVIII. 
PRACTICE   AND   EVIDENCE   IN   CRIMINAL   CASES.     .     .     .571-596 

PART  I. 

PRACTICE  AND  EVIDENCE  IN  CRIMINAL  PROCEEDINGS  BY 

WAY  OF  INDICTMENT 571-591 

Proceedings  before  Magistrates 571 

Indictment 574 

Pleading  to  tlie  Indictment 576 

Certiorari 578 

Evidence  for  the  Prosecution 580 


XX  TABLE   OF   CONTENTS. 

Evidence  for  the  Defence 582 

Suniming-up  and  Verdict 585 

Proceedings  after  Verdict ib. 

Seutcuce 589 

Costs • 590 

PART  II. 

PRACTICE   AND  EVIDENCE    IN    PROCEEDINGS   BY  WAY  OE 

CRIMINAL    INFORMATION 591-596 

Motion  for  the  Rule 591 

Argument  of  the  Rule 593 

Compromise 594 

Trial  and  Costs 595 


APPENDICES. 

A.  APPENDIX  OE  PRECEDENTS   OF   PLEADING,  ETC.     .     .  596-661 

Contents 596 

I.  Precedents  of  Pleadings  in  Actions  for  Libel 600 

II.  Precedents  of  Pleadings  in  Actions  of  Slander    ........  621 

III.  Precedents  of  Pleadings  in  Actions  of  Slander  of  Title      ....  634 

IV.  Forms  of  Pleadings,  Notices,  &c.,  in  the  County  Court    ....  644 
V.  Precedents  of  Criminal  Pleadings 649 

B.  REPORT  FROM  THE  SELECT  COMMITTEE  OF   THE   HOUSE 

OF  COMMONS  ON  THE  LAW  OF  LIBEL 662 

C.  APPENDIX  OF  STATUTES 664-683 

Contents 664 


GENERAL   INDEX 685-748 


TABLE   OF   CASES. 


A. 

V.  Moor 

Abraliiims  v.  Kidney 
A  brains  i'.  Smith 
Abuij  t'.  Riches 
Adams  v.  Ilannon 


305 

313 
94,  99 

305 


V.  Kelly      155,  333,  533,  535,  538 

V.  Lawson  22,  2'.)8 

V.  MereJew  104 

V.  Rankin  84 

V.  Rivers  83 

V.  Smith  805,  313 

Adcock  V.  Marsh  2'.)8 

Ad  lam  V.  Colthurst  433,  447 

Aisli  V.  Gerish  131 

Alderman  i\  French  274,  485 

Aldrich  V.  Press  Printing  Co.         40,  3(J8 

Alexander  v.  Alexander  54,  55 

V.  North  Eastern  Ry.  Co.  170, 

173,253,368,497,498,549 


V.  Thomas 
Alfred  v.  Farlow 
AUardice  v.  Robertson 
Allen  V.  Crofoot 

V.  Eaton 

V.  Hillinan 
Alleston  v.  Moor 
Alley  V.  Neely 
Alllmsen  v.  Labouchere 
Allsop  V.  AUsop 
Alpin  I'.  Morton 


2[>1 

56,  60,  123 

190 

120,  183,  191 

76 

55,  122 

71,  75 

57 

50-5,  510,  511 

8t5,  312,  32-3,  325,  349 

207,  298 


Amami  v.  Damm    217,  218,  220,  225,  475 


Ames  V.  Hazard 

Anderson   v.   Bank    of  British 
lumbia 
V.  Dunn 
V.  Hamilton 

Andres  v.  Koppenheaver 

Andres  v.  Wells 

Andrews,  Ex  parte,  In  re  Fells 
V.  Chapman 
V.  Van  Duzer 
V.  Woodmansee 

Angle  V.  Ale.xander 


177 
Co- 
516,  517 

424 

536 

55,  50 

271,  362 

431 
251,  255 

ig;) 

55 

G6,  78,  103,  120, 

295 

Anibal  v.  Hunter  169 

Aimison  y.  Blofield  75  111 

Anon.,    22,  24,  60,  60,  66,  74,  84,  96  'lO"' 

104,  122,  126,  130,  139,  16'.),  328' 

381,  441,  472,  558,  575 


Anstey  v.  N.  &  S.  Woolwich  Sub- 
way Co.  •  515 
Antiiony  v.  Halstead  557 
Appleby  v.  Waring  520 
Archbold  v.  Sweet  29 
Armitage  v.  Dunster  537 
V.  Fitzwilliam  503 
Armstrong  v.  Lewis  551 
Arne  r.' Johnson  65,79,115 
Arnold  v.  Clifford  374 

V.  Cost  55 
Ashley  v.  Harrison         293,  314,  319,  322 

V.  Taylor  506 

Ashworth  v.  Uutrara  337,  565 

Asquith  v.  Molineux  524 

Astley  (Sir  John)  v.  Younge  192,  193 

Aston  r.  Blagrave  69,  71 

Atherley  v.  Harvey  505 

Atkins  i'.  Johnson  211 

V.  Perrin  144 

Atkinson  v.  Fosbroke  470,  503 

V.  Hartley  53 

V.  Reding  55 

Atthill  V.  Soman  295 

Attorney-General  v.  Le  Merchant       581 

V.  Siddon  364 

Attorney-General    of    New  South 

Wales  r.  Macpherson  425 
At  will  V.  Mackintosh                22,  210,  271 

Atwinger  v.  Fellner  151 

Augnstinus  v.  Nerinckx  506 

Aiisman  r.  Veal  84 

Austin  (Sir  J.)  v.  Culpepper  8,  22 

Austria  r.  Day  13 

Axmann  c.  Lund  144 

Ayre  v.  Craven               60,  76,  77,  84,  541 

Ay  res  V.  Grider  122 


B. 


Baal  V.  Baggcrley  55,  122 

Baboneau  i\  Farrell  80,  114 

Bngg's  Case  441 

Bailey  v.  Kalamazoo  Pub.  Co.  29,  40,  94, 

106,271,305 

Bainhridge  r.  Lax  489 

Baker  v.  Lane  504 

V.  :\[orfue  vel  Morphew  89,  68,  75 

V.  Newton  507 

V.  Oakes  336 


xxn 


TABLE   or   CASES. 


Baker  v.  Pierce  18,  55,  61,  122 

V.  Young  5o6,  537 

Baldwin  v.  Eipliinston  152,  157,  472,  532 

V.  Elower  350 

V.  Hildreth  540 

V.  Soule  271,  537 

Ball  r.  Roane  119 

Banister  v.  Banister  139,  143 

Bank  of  Australasia  v.  Harding  439 

V.  Nias  439 

Bank  of  British  North  America  v. 

Strong  191, 228 

Bankes  v.  Allen  74 

Barbaud  r.  Hookham  288 

Barber  v.  Barber  •                 298 

Barclay  v.  Thompson  54 

BartJeld  v.  Britt  169,  178 

Barger  v.  Barger  123 

Barham's  Case  103 

Barker  v.  Commonwealth  404 

Barmund's  Case  85,  311 

Barnabas  v.  Traunter  59,  311,  325 

Barnard  v.  Boulware  456 

Barnes  v.  Hamon  93,  94 

V.  HoUoway  537 

V.  McCrate  191 
1-.  Prudlin,  or  Bruddel      312,  316 

Barnett  r.  Allen  24,  61,  83,  539 

Barr  v.  Hack  271,  305,  480 
V.  xMoore        6,  22,  40,  236,  271,  292 

Barratt  v.  Collins  370 

Barret  v.  Jarvis  53 

Barrett  v.  Long  272,  276 

Barrens  v.  Ball  118 

Barrow  i'.  Lewellin  150,  151 

Barry  v.  Barclay  527 

i-.  MGrath  301,  493 

Bartlett  v.  Lewis  504 

Barton  v.  Holmes  93 

Bartow  v.  Brands  271 

Barwell  v.  Adkins  274,  276 

Barwis  v.  Keppel  195 

Bash  !'.  Sommer  350 
Bassell  v.  Elmore  84, 308,  309,  316, 321, 331 

Bateman  v.  Lyall  315,  330,  543 

Bathurst  v.  Coxe  440 

V.  Kearsley  14 

Baum  V.  Clause  58 

Baylis  v.  Lawrence  94,  265,  550 

Beach  v.  Beach  349,  490 

V.  Ranney  312,  345 

Beamond  v.  Hastings  71 

Beardsley  i".  Bridgman  271 

V.  IMaynard  306 

V.  Tappan  212 

Beasley  v.  Meigs  ■^"l 
Beatson  v.  Skene,          204,  206,  519,  515 

Beaumont  v.  Barrett  425,  426 

Beclilcr  v.  Steever  298 

Bechtell  v.  Shatter  110 

Becket  v.  Sterrett  55 

Beddintrton  r.  Beddington  357 

Bedwell  v.  Wood  337 

Beggarly  r.  Craft  169 

Behrens  v.  Allen  171,  486 


Bell  V.  Byrne  125,  471,  536 

V.  Midland  Railway  Co.  83,  292 

V.  Parke  207,  208,  305,  306 

V.  Stone  22 

V.  State  404 

I'.  Wilkinson  478 

Bellamy  i-.  Burch  64,  81 

Benbow  v.  Low  498 

Bendish  v.  Lindsay  5,  6 

Benedict  v.  Westover  151 

Bennett  v.  Barry  236 

V.  Bennett  302 

V.  Deacon  215,  218 

V.  Hyde  298 

V.  Watson  447 

Bennifield  v.  Hypres  350 

Benson  v.  Flowers  354 

Bent  V.  Mink  151 

Berdan  v.  Greenwood   301,  480,  492,  493, 

494 
Berdeaux  v.  Davis  57 

Berkeley  v.  Standard  Discount  Co,     502 
Berry  v.  Carter  84 

Berryman  v.  Wise  69,  530 

Besant  v.  Wood  553 

Bickford  ;;.  Darcey  504 

Biddulph  v.  Chamberlayne  177,  340 

Biggs  V.  Great  Eastern  Railway  Co.  173, 

253 

Bignell  v.  Buzzard  31 

Bigsby  V.  Dickinson  564,  565 

Bill  V.  Neal  69,  71 

Billings  V.  Waller  169 

V.  Wing  55 

Birch  V.  Benton  55,  536 

Birmingham  Estates  Co.  v.  Smith       495 

Bisbey  v.  Sliaw  169 

Bishop,  In  re,  Ex  parte  Smith  432 

V.  Latimer  30, 75, 99, 172, 256, 486 

Bishops'  (The  Seven)  Case  534,  581 

Bissell  V.  Cornell  55 

Bittridge's  Case  99,  109 

Black  V.  Hunt  61.  82 

Blackburn  v.  Blackburn  264 

Blackham  v.  Pugh  145,  226,  235 

Blackman  v.  Bryant  61,  82,  111 

Blades  v.  Lawrence  567 

Blagg  V.  Sturt  29,  224,  270,  276 

Blake,  Re  7,  253 

V.  Albion  Assurance  Society     272 

V.  Appleyard  341,  342 

V.  Pilfold  •     217,  223,  535 

V.  Stevens  7,  30,  154, 170, 1 73, 

253,297 

BlickenstafE  v.  Perrin  84 

Bliss  V.  Stafford  140 

Blood  wort  li  V.  Gray  63 

Bloom  V.  Bloom  458 

Blumley  i*.  Rose  106 

Bod  well  V.  Osgood  9 

V.  Swan  271 

Bolckow  V.  Young  508 

Bold  I'.  Bacon  139 

Bolton  (Sir  William)  v.  Dean  9 

Bond  V.  Douglas  155,  272,  333,  533 


TABLE   OF   CASES. 


XXlll 


Bonomi  v.  Backhouse  317,  456 

Boosey  v.  Wood  489 

Booth  V.  Briscoe  28,  47,  365,  370 

Boston  V.  Tataiii  58 
Boston  Diatite  Co.  v.  Florence  Manuf. 

Co.  13 
Botelar  v.  Ball  271 
Botterill  v.  Whytehead  68,  77,  172,  214, 
2iy,  234,  001 
Bourke  v.  Warren  129,  130,  540 
Bourland  r.  Kidson  306 
Bourn's  (Sir  John)  Case  131 
Bowden  v.  Allen  513 
Bowe  V.  Rogers  291 
Bower  v.  Deideker  537 
Bowey  y  Bell  336 
Boxe  t'.  Barnaby  75 
Boy  dell  v.  Jones            2-3,  27,  99, 116,  2.56 
Boyle  r.  Wiseman  504,  534,  536 
Brace  v.  Brink  123 
Bracebridge  v.  Watson  311 
Bracegirdle  v.  Bailey  8,  305 
V.  Orford  8 
Braden  v.  Walker  274 
JBradlaugh,  E.r  parte  406 
V.  The  Queen  405,  424,  586 
Bradley  v.  Gibson  305 
V.  Heath  237 
V.  Methwyn  5 
Bradt  v.  Towsley  313 
Brady  v.  Wilson  114 
V.  Youlden  67,  317 
Brand  v.  Roberts  59,  85 
Brandreth  v.  Lance  15 
Brandrick  v.  Jolinson  66,  77 
Braveboy  v.  Cockfield  9 
Bray  v.  Ham  80 
Brayne  v.  Cooper  56,  66,  78,  84 
Brembridge  v.  Latimer  102,  177,  487 
Brennan  i-.  Tracy  367 
Brett  V.  Watson  1-54,271 
Brettun  v.  Anthony  93,  94,  100,  114 
Brewer  v.  Dew  8 
Brewster's  Case  420,421 
Bri<]ges  v.  Playdel  56 
Bridgman  v.  Hopkins  305 
Brigg's  Case  56 
Briggs  ».  Byrd  94,  220,  540 
Brine  v.  Bazalgette  275,  298 
Brinsmead  v.  Harrison  457 
Brite  v.  Gill  122 
Brittain  c.  Allen  271 
Broadhurst  v.  Willey  341 
Brocklebank  v.  King's  Lynn  Steam- 
ship Co.  354, 467 
Broke's  Case  74 
Bromage  t- .  Prosser        164,  206,  240,  264 
267,  282,  471 
Bromefield  ;;.  Snoke  80 
Brook  V.  Evans  249,  4-36 
V.  Rawl  141,  143 
V.  Wise  63 
Brooke  v.  Avrillon  274 
V.  Clarke  68 
11.  Montague  (Sir  Henry)        190 


Brooker  v.  Coffin  84 

Brookes  v.  Tichbome  533 

Brooks  V.  Blanshafd,     216,  218,  238,  286 
V.  Israel  336 

Broome  v.  Gosden         101,  102,  129,  539, 

540,  558 

Brow  V.  Hathaway  200,  220,  241 

Brown,  Ex  parte  425,  426 

V.  Barnes  271,  298,  305,  537 

v.  Brashier  151 

V.  Croome  226,  241,  275,  283,  542 

V.  Hanson  123 

V.  Hirley  4.58 

V.  Lane  or  Low  131,  542 

V.  Mims'  80 

V.  Murray  525 

V.  Nickerson  66 

V.  Finer  100 

V.  Remington  22 

V.  Smith  78,  291 

V.  Wootton  457 

Bruce  v.  Nicolopulo  536 

V.  Soule  62,  63 

Brunkard  v.  Segar  61,  82 

Brunswick  (Duke of)  v.  Harmer  160.  168, 

230,  232,  293,  456,  532,  539,  592 

Bruton  v.  Downes  24,  193 

Bryant,  In  re  432 

V.  Lo.xton  67,  80 

Buchanan  v.  Taylor  508 

Buck  V.  Hersey  66 

Buckingham  v.  Murray  471 

Buckley  v.  Knapp     6,  169,  177,  271,  292, 

298 
V.  O'Niel  61 

V.  Wood  192,  193,  245 

Bucton  V.  Higgs  341 

Buenos  Ayres  Gas  Co.  v.  Wilde  429,  436 
Buford  V.  McLuny  305 

Bull  V.  Chapman  374 

BuUard  v.  Lambert  305 

Bullock  V.  Koon  123 

Bump  V.  Betts  6,  292 

Bundy  i'.  Hart  54,  .536 

Burbank  v.  Horn  151 

Burclier  v.  Orchard  351,  371,  560 

Bnrder  v. 403 

Burdett  V.  Abbot     154, 155,  157, 426,  435 

V.  Colman  423 

Burford  v.  Lenthall  340 

V.  Wible  169 

Burges  v.  Bracher  96,  558 

Burgoine  r.  Taylor  530 

Burke  i".  Rooney  522 

Burkett  r.  McCarty  123 

Burnet  v.  Wells  79,  137 

Burnett  v.  Chetwood  14 

Biirson  v.  Edwards  271 

Burt  V.  McBain  84,  271, 313, 318,  345 

Burtch  V.  Nickerson  80 

Burton  v.  Burton  57 

r.  Plummer  537 

Bush  V.  I'rosser  274,  305 

V.  Trowbridge  Waterworks  Co.  477 

Bustros  V.  Bustros  357 


XXIV 


TABLE   OF   CASES. 


Bustros  V.  White  517,  521 

Butt  V.  Conant  428,  571 

Button  V.  Heyward  18,  55,  96 

V.  Heywood  93 
V.  Woolwich  Mut.  Bg.  Soc.      569 

Byrchley's  Case  75 

Byrd  v.  Nunn  499 

Byrket  v.  Monohon  178,298 


Cffisar  r.  Curseny  64,  71 

Calder  v.  Halket  188 

Caldwell  v.  Abbey  55 

Caley  v.  Caley  352 

Calkins  v.  Sumner  183,  191 

Callan  v.  Gaylord  531 

Camfield  v.  Bird  273 

Camp  V.  Martin  75,  76 

Campbell  i:  Butts  271,  490 

V.  Spottiswoode    22,  30,  35,  38, 

39,  40,  49 

V.  The  Queen  588 

Canadian   Oilworks    Corporation  v. 

Hay  475 

Cane  f.  Golding  141,  143 

Cannell  v.  Curtis  69,  530 

Cannon  v.  Phillips  123 

Cans  V.  Roberts  59,  85 

Canterbury  v.  Hill  123 

Capei  V.  Towell  351 

I'.  Jones  104,115 

Capes  V.  Brewer  460 

Capital  &  Counties  Bank  ;•.  Hentv       2(3, 

103,  110,228,  236,555 

(C.  A.)  26,  103,  113,  110,  228,  236, 

540,  555 

Carew  v.  Davies  505 

Carmicliael  v.  Siiiel  94 

;;.  Waterford  &  Limerick 

Ry.  Co.  270,  207 

Cam  V.  Osgood  71 

Carpenter  v.  Bailey  169, 177,  185,308,  313 

V.  Dennis  78 

V.  Tarrant  58 

Carr  v.  Duckett  142,  487,  631) 

(Sir  John)  v.  Hood  37.  48 

V.  Jones,  24,  46,  176,  255 

Carrol  v.  Bird,  201 

V.  Falkiner  327 

Carroll  v.  White  75,  76 

Carslake  v.  Mapledoram  63 

Carson  v.  McFadden  449 

Carter  i-.  Andrews  122 

V.  Howe  Machine  Co.  368 

V.  Jones  530 

V.  Leeds  Daily  Kews  Co.  511,514, 

515,  620 

V.  Stubhs  522 

Cartwriiiiit  v.  Wright  471 

Carv  r.  Alien  22,  100 

Case  V.  Marks  298 

Casey  v.  Arnott  148,  357 


Cashin  v.  Cradock 
Cass  V.  Anderson 
Castle  V.  Houston 
Castleberry  v.  Kelly 
Castro's  Case 
Catling  r.  King 
Catterall  v.  Kenyon 


499,  516 

123 

389 

53 

430,433 
477 
372 


Caulfield  v.  Whitworth  269,  274,  537,  542 
Cawdrey  v.  Highley  68,  74 

Ceeley  v.  Hoskins  56,  60,  123 

Chace  v.  Sherman  100,  114,  537 

Chaildock  v.  Briggs  66,  93 

Chadwick  v.  Herapath  300,  497 

Chalmers  i-.  Payne  27,  251,  252,  253,  552 
V.  Shackell  170, 172,  306 

Chamberlain  v.  White  or  Willmore  891 
Chamberlin  i'.  Vance  93,  177,  271,  274 
Chambers  v.  White  57 

Ciiandler  v.  Robison  123 

Chantler  v.  Lindsey  491 

Chapin  v.  White  151 

Chaplin  v  Cruikshanks  57 

Chapman,  Ex  jiarle  441 

V.  Gillett  56,  394 

V.  Lamphire  79 

1-.  Midland  Ry.  Co.      342,  343 
T.  Ordway  169 

Cliarges  (Sir  Thomas)  v.  Rone  236 

Charlter  v.  Barret  273 

Charlton  v.  Watton  176,  261,  302 

Charlton's  (techmere)  Case  430,  434 
Charnel's  Case  62 

Charter  v.  Peter  121 

Chase  v.  Wiiitlock  61 

Chatfield  r.  Sedgwick  342 

Clieadle  v.  Buell  480 

Cheese  v.  Lovejoy  551 

1-.  Scales  22,  29,  283 

Cheltenham  &  Swansea  Wagon  Co. 

In  re  429 

Chenery  v.  Goodrich  100 

Cliennell,  In  re  564 

Cliesier  v.  Wortley  504 

Chtsterfield  Colliery  Co.  v.  Black       515 

Child  V.  Affleck  201 

V.  Homer  306 

Cliillingworth  v.  Grimhle  269 

Cliipman  r.  Cook  74,80 

Cliorlton  V.  Dickie  529 

Christie  v.  Christie  192 

V.  Powell  109 

Chubb  V.  Flannagan  160,  387 

V.  Westley  94,  273,  276 

V.  Ysell  298 

Church  V.  Barnett  528 

V.  Bridgman  55,  162 

V.  Perry  512,  515 

Churchill  (Lord)  v.  Hunt        2-3,  176,  -537 

V.  Kimball  458 

Cilley  V.  Jenness  485 

Clare  v.  Blakesley  4.32 

Clark  r.  Brown  169,  271,  305,  537 

V.  Cliambers  322 

V.  Dibble  178 

V.  Freeman  14,  16,  29,  34,  79 


TABLE   OF   CASES. 


XXV 


Clark  V.  Molyneux        142,  214,  219,  2G6, 

•2m,  274,  278,  260,  472,  541 

V.  Munsell  479 

V.  Newsam  270,  2i)7 

Clarke  v  Cooksoa  454 

V.  Fitch  94,  100,  lOiJ 

V.  Jonus  101) 

V.  Morgan  315,  3-]0 

V.  Taylor  173,  170 

Clarke's  Case  56,  102,  123 

Clarkson  v.  Lawson  30,  173 

V.  McCarty  291 

Clay  V.  Brigham  93 

V.  People  151 

V.  Roberts  26,  29,  76,  477,  497 

V.  Yates  374 

Clear  r.  Keasor  291 

Cleavelaint  r.  Detweiler  81 

Cleaver  r.  SarrauJe  217 

Clegg  c.  Laffer  103,  125,  154 

Clement  v.  Cliivis  22 

V.  Fisher  128 

V.  Lewis     29,  99,  172,  256,  291, 

480 

Clements  v.  Maloney         6,  292,  298,  580 

Clerk  V.  Dyer  124 

Clifton  V.  Wells  0  5 

Clover  r.  llovdon  15 

Clutterbuck  I:  Chaffers        153,  383,  580 

Cobham  v.  Dalton  432 

Cochrane,  Ex  parte,  in  re  Mead  '431 

Cockaine  v.  Hopkins  01,  82,  125 

Cockaine's  (Lady)  Case  v.  Witnam       50 

Cockayne  i'.  Ilodgkisson  209,  217 

Coffin  V.  Coffin  180 

Colburn  v.  Patmore  157,  294,  372, 

374 

Colby  c.  Pveynolds  22 

Cole  ('.  Firth  342 

(!.  Grant  123 

Coleman  v.  Ilarcourt  348,  350 

V.  Playsted  271 

V.  West  Hartlepool  Harbor 

&  Ry.  Co.        251),  429,  430 

Coles  V.  Ilaveland  111 

Collette  V.  Goode  499 

Collins  0.  Carnegie  69,  76,  81,  531 

V.  Vestry  of  Paddington  503 

V.  Welch  337 

V.  Yates  517 

Colman  v.  Godwin  56, 121 

Colonial  Assurance  Co.  Limited  v. 

Pro-!scr  406 

Combe  c.  Edwards  431 

Commonwealth  v.  Blanding        180,  2")4, 

389,  531 
V.  Bonner  271 

V.  Chapman  373 

V.  Clap  40,  236,  375 

I'.  Hall  151 

V.  Hnrnion  5/4 

V.  Holmes  401 

V.  Keenan  100 

V.  Kneeland         159,  3'.tl 
V.  Mueser  412 


Commonwealth  v.  Morgan  6,  151,  157, 

177,271 

V.  Sharpless  404 

V.  Snelling  380,  479 

1-.  Sweeney  373,  574 

V.  Tarbo.K  574 

V.  Varney  151,  574 

V.  Walters  530 

V.  Wright  22,  574 


Conesby's  Case 
Connors  v.  Justice 
Conroe  v.  Conroe 
Cook  c.  Batchellor 

V.  Cook 

V.  Dey 

r.  Field 

V.  Ward 

V.  Wingfield 
Cooke  V.  Cox 

V.  Hughes 


149 

77 

305 

81,  307 

308,309,  317 

400 

178,  291,  319 

6,  540,  625 

59,  85 

470 

22,  98,  302,  535 


V.  Oceanic  Steam  Co.  501 

V.  Wildes  228,  269,  281 

Coombs  V.  Rose  22,  237 

Coons  V.  Robinson  123 

Cooper  V.  Barber  305 

V.  Francis  298 

V.  Greeley  22 

17.  Hawkswell  120 

r.  Lawson  40,  171,  248,  250 

V.  Mai'low  537 

V.  Smith  121 

V.  Stone  40 

V.  Weed  371 

Corbley  v.  Wilson  1,  178,  274,  490 

Corcoran  y.  Corcoran  311 

Cornwall  v.  Richardson  275,  298 

Cosgrave  v.  Trade  Auxiliary  Co.       249, 

483 

Cotes  V.  Ketle  07,  80 

Cottrill  V.  Cramer  40,  100 

Counsel  v.  Garvie  506 

Cowan  v.  Milbourn  874,  3'.i9 

Coward  v.  Wellington  311,  349 

Cowles  V.  Potts  206 

Cox  f.  Cooper  25,  100,  112 

V.  Feeiiey  41,  47 

I'.  Huniplirev  59,  90 

V.  Lee           ■  22,  23 

Coxhead  c.  Richards      29,  205,  214,  215, 

218 

Cracknall  v.  Janson  340 

Craig  c.  Cat  let  306 

V.  Phillips  563 

Cramer  v.  Noonan  22 

I'.  Riggs  27,  69,  412 

Crandall  v.  Dawson  178 

Crauden  v.  Walden  73 

Craven  v.  Smitli  334,  337,  464 

Craw  foot  v.  Dale  80 

Crawford  v.  Melton  50 

V.  Middleton  10.3,  205 

Crawford's  Case  427,  438 

Creen  v.  Wright  338.  560 

Crcovy  V.  Carr  159,  309,  458 

Creigliton  v.  Finlay  303 


XXVI 


TABLE   OF   CASES. 


Cresinger  v.  Reed  94 

Crisp  V.  Gill  79,  80,  227,  236 

Crotord  v.  Blisse  12ij 

Croft  V.  Stevens  237 

(Sir  Herbert)  v.  Brown  55,  124 

Cromwell's  (Lord)  Case  108,  476 

Crone  v.  Angell  56 

Crookshank  v.  Gray  123 

Cropp  V.  Tilney  9,  21 

Crotty  V.  Morrisey  178,  537 

Crowe  V.  Barnicot  495 

Clicks  V.  Starre  73 

Cuddington  v.  Wilkins  68,  497 

Culvertson  v.  Stanley  537 

Cummins  v.  Butler  123 

V.  Smith  123 

Gumming  v.  Bird  449 

Curry  v.  Collins  64 

V.  Waller  244 

Curtis  V.  Curtis  55 

V.  Mussey     40, 157,  198,  236,  271, 

362 


Dawkins  v.  Rokeby  (Lord)  193, 194, 195, 

196,  536 


D. 

Dacy  V.  Clinch 
Daily  v.  Gaines 
Daines  v.  Hartley 
Dale,  Ex  parte 
f.  Harris 
Dalrymple  i'.  Lofton 
Dalton  r.  Higgins 
Daly  V.  Bj'rne 
Dame  r.  Kenney 
Dancaster  v.  Hewson 


59,  62,  119 

537 
111,  538 
382,  448 
201 
123 
123 
271 
169 
193,  537 


Darby  v.  Ouseley    99,  272,  297,  302,  551 


Darling  v.  Banks 
Davey  '■■  Pemberton 
Davidson  v.  Gray 

(C.  A) 
Davies  v.  Felix  (C.  A.) 
V.  Snead 
V.  Solomon 
Davis  V.  Brown 

V.  Cut  bush 

V.  Davis 

V.  Duncan 

V.  Gardiner 

V.  Garland 

V.  Gray 

V.  Johnston 

V.  Lewis 

V.  Mathews 

V.  Miller 

V.  Beeves 

?>.  Ruff 

V.  Williams 
Davison  v.  Duncan 

Daw  I'.  Eley 


311. 


178 

337,  521 

339,  342 

339,  342 

555 

215,  219 

316,  324 

84 

242,  285,  302,  304 

80,  550 

52,  450 

58,  310,  326 

459 

507 

93 

65,  79,  120,  163,  165 

im 

61,  80,  83 

211 

78,81 

516 

165,  175,  186,  236, 

259,  261,262,283 

44,  430,  430 


Dawes  v.  Bolton  or  Boughton  59 

Dawkms  v.  Paulet  (Lord)    194,  195,  109, 

484,  497 
V.  Penrhyn  (Lord)         477,  478 


Day  V.  Bream 

153,  360,  384,  547 

V.  Brownrigg 

15 

V.  Buller 

75 

V.  Robinson 

104,  109,  295 

Dayton  v.  Rockwell 

123 

Dean  v.  Miller 

291 

Dean's  Case 

444 

De  Armond  v.  Armstrong      94,  100,  177 
De  Cosse  Brissac  v.  Rathbone  439 

De  Crespigny  v.  Wellesley  167, 163, 164, 

174,  262 
Defries  v.  Davis  273,  353 

Delacroix  v.  Thevenot  151 

De  La  Grange  v.  McAndrew  467 

Delany  v.  Jones  55,  226,  241,  283 

Delcgal  V.  Highley        190,  276,  293,  319 
Dengate  v.  Gardiner  319,  825 

Derry  v.  Handlev  168,  333 

Desilla  v.  Schunck  &  Co.  458 

Desmond  v.  Brown  93,  151,  537 

Detroit  Post  Co.  v.  McArthur      157,  302 
Deveriil  v.  Hulbert  108 

Dewitt  V.  Greenfield  305 

Dexter  v.  Spear  387 

r.  Taber  94 

Dial  V.  Holter  54,  237 

Dibdin  v.  Swan  50 

Dicas  V.  Lord  Brougham  189 

V.  Lawson  253 

Dickenson  v.  Hilliard  196 

Dickeson  v.  Hilliard  212 

Dickey  v.  Andros  121,  122,  536 

Dickinson  v.  Barber  354 

Dicks  V.  Brooks 

C.  A. 
Dickson  v.  Combermere 

V.  Wilton  (The  Earl  of) 


564 

144 

196 

196, 

236,  268 

25 

425 

196,  267,  305 

458 

501 

84,  271,  274,  5.37 

3.32 

514,  532 

13,  14,  15,  16,  17 

201 

76,  167,  218,  313,  315, 

316,  330,  513 

V.  Stewart  93,  94 

Dobede  v.  Fisher  306,  494 

Dobson  V.  Tliornistono  79 

Dod  r.  Robinson  66,  72 

Dodds  '•.  Henry  28 

Doe  d.  Devnies  r.  AVilson  534 

Mudd  V.  Suckermore  533 

Dolierty  i'.  Brown  536,  537 

Dole  V.  Lyon  164 

V.  Van  Rensselaer  70 

Dollmaii  V.  Jones  561 

]')oll()way  V.  Turrell  71 

Donogliue  v.  Hayes  6,  169 


Digby  V.  Thompson 
Dill  ('.  Murpliy 
Dillard  v.  Collins 
Dioyt  V.  Tanner 
Disney  v.  Longbourne 
l^istin  ('.  Rose 
Dixon  I'.  Bell 

V.  Enoch 

V.  Ilolden 

V.  Parsons 

V.  Smith 


TABLE   OF    CASES. 


XXVU 


Dorchester  (Marquess  of)  v.  Proby  136 

Dorland  v.  Patterson  98 

Dorme's  Case  55 

Dorsett  v.  Adams  P^^J 

Doss  V.  Jones  274 

V.  Secretary  of  State  for  India  196 


Dottarer  v.  Bushey 
Douglass  V.  Towsey 
Dovaston  v.  Payne 
Doveton,  Ex  parte 
Dowd  V.  Winters 
Dowling  V.  Browne 
Downey  v.  Dillon 
Downie  &  Arrindell,  Re 


12.: 


84 
2U1 

83 
3&2 
537 
354 
298 
439 


Downing  u.  Brown 
V.  Wilson 
Downs  V.  Hawley 

Doyle  V.  Kaufmann 
V.  Falconer 
V.  O'Dolierty 


93,  94,  178,  274 
84 

84,93,94,151,271, 
537 
460 
425 
192 


Doyley  v.  Roberts  66,  74,  75,  293, 311, 541 
Drake,  Ex  parte,  In  re  Ware         431,  457 


72, 
79 
305 
57 
8,  13,  22,  24,  374, 
540 
55 
490 
313 
54,  305,  537 
405 
22,  .306 
244,245,240,251, 
486 
Dancombe  v.  Daniell     2-36,  241,  302,  301 
Dunnian  v.  Bigg  235 

Dunn  V.  Hall  6,  157,  271,  291,  362 

V.  Winters  237 

Dunne  v.  Anderson  43 

Dunnell  v.  Fiske  55,  122 

Durraii  v.  Stilwell  536,  537 

Duval  V.  Davey        84,  151,  274,  305,  350 
Dwyer  v.  Esmonde  52,  168,  230 

Dyer  v.  Morris  84 

Dymond  v.  Croft  462 


V.  Drake 

V.  Hill 
Drown  ;;.  Allen 
Drummond  v.  Leslie 
Du  Best  V.  Beresford 

Dudley  v.  Horn 
Duffy  V.  Gray 
Dufort  V.  Abodie 
Dufresne  v.  Weise 
Dugdale  v.  Regina 
Duncan  v.  Brown 

V.  Thwaites 


E. 

Eaden  v.  Jacobs  (C.  A. 
Eagleton  v.  Kingston 
Eames  v.  Wiiittaker 
Easley  n.  Moss 
East  V.  Ciiapnian 
Eastmcad  l\  Witt 
Eastwood  V.  Holmes 
Eaton  V.  Allen 
V.  Jolins 
Eccles  V.  Shannon 
Eden  v.  Legare 
Edgerly  v.  Swain 
Edmond's  Case 


506 

533 

204,  220 

208,  536 

302,  304 

203,  225,  226 

32,  51,  127 

56 

22,  477 

56 

53 

55,  122,  537 

436 


Edmunds  v.  Greenwood 
Edsall  V.  Brooks 

V.  Russell  55,  08,  76, 

Edwards  v.  Bell  28,  170, 

V.  London  &  N.  W.  Ry.  Co. 
Egremont  Burial  Board  v.  Egremont 
Iron  Ore  Co.  516, 

Elam  V.  Badger 
Elborow  V.  Allen 
Elfrank  v.  Seller 
Elliot  V.  Halmarack 
Elliott  V.  Boyles 
Ellis  V.  Ambler 

V.  Buzzell 

V.  Lindley 

V.  Munson  (C.  A.) 
Ellissen,  Ex  parte 
Elmer  v.  Creasy 
Else  V.  Ferris 
Eniblen  v.  Myers 
Emery  v.  Prescott 

Emmerson  v.  Marvel       84,  100,  151, 
Emperor  of  Austria  v.  Day 
Empson  v.  Fairfax 
England  v.  Bourke 
English  V.  Tottie 

Entick  V.  Carrington  152, 

Etty  V.  Wilson 


32,  .83,  79,  145, 
291,  316,  319,  320, 


404 
22 
173 
173 
3ul 

517 

84 
140 

84 
431 
271 
501 
178 
178 
495 
573 
510 

31 
292 
123 
580 

14 
339 
549 
518 
574 
555 

73 
147 
330 
335 
162 
3.52 
299 
.29 


Evans  v.  Gwyn 

V.  Harlow 

V.  Harries 

V.  Rees 

V.  Smith 

V.  Walton 
Evening  News  Asso.  v.  Tryon  6,  292, 
Eviston  V.  Cramer  2] 


F. 


Fairchild  v.  Adams  237 

Fairman  v.  Ives  222,  224,  245,  287 

Falkland  (Lord)  v.  Phipps  136 

Falkner  v.  Cooper  130 

Falvey  v.  Stanford  292,  559 

Farley's  (Mrs.)  Case  429 

Farnam  v.  Cliilds  274,  480,  485 

Farnsworth  v.  Storrs  237 

Farrow  v.  Hague  569 

Faund  v.  Wallace  557 

Fawsett  V.  Clark  55,  93,  122 

Felkin  v.  Herbert  430 

Fellowes  v.  Hunter  80 

Fells,  In  re.  Ex  parte  Andrews  431 

Fenn  v.  Dixe  79 

Fennell  v.  Tait  526 

Fenton  v.  Hampton  425 

Fermmdez,  Ex  parte  4.3.5,  4.37 
Field  I'.  Gt.  Northern  Ry.  Co.       338,  560 

Figcins  V.  Cogswell  79,  81 

Filber  v.  Dautermann  50,  122 

Findcn  v.  Westlake  228,  277,  285 

Finnerty  i'.  Tipper  273,  296,  307 

Finney  v.  Smitii  302 

Fisher  v.  Atkinson  82 


XXVIU 


TABLE   OF   CASES. 


Fisher  V.  Clement  2G4,  539 

V.  Iluglies  5:^2 

V.  Owen      605,  509,  510,  511,  512, 

519 

V.  Hottereau  122 

Fislier  &  Co.  v.  Appollinaris  Co.  15 

Fitter  V.  Veal  295,  317,  320,  552 

Fitzgerald  v.  Campbell  27B,  484 

V.  Uedfield  77 

V.  Kobiuson     56,  84,  112,  113, 

212 

r.  Stewart  162,  3u5 

V.  Villiers  463 

Fitzgibbon  v.  Greer  508 

Fitzpatrifk  v.  Stewart  305 

Fla^'tf  '•■  lioberts  6,  292,  306 

Flaiiiiiigliam  v.  Boucher  271 

Fleetwood  v.  Curl  or  Curley  70,  110,  131 

Fleming  r.  Newton  13,  14,  248,  4^6 

Flint  r.  Pike  176,253,256 

Flower's  Case  68 

Fl<)3d  1-.  Barker  188,  189 

Folsoni  V.  Brown  1<7,  178 

Fonville  <■.  Kease  151,  153 

Foot  V.  Brown  74,  76 

Footman  v.  Dunn  193 

Forbes  V.  King  25,  114 

Force  V.  Warren  231 

Ford  V.  Primrose  55 

Fores  v.  Johnes  374 

Forsdike  v.  Stone  292,  336,  559 

Forshee  v.  Abrams  178 

Fortescue  v.  Fortescue  517 

Forward  r.  Adams  69 

Foss  V.  I-lildreth  169 

Foster  v.  Browning  55, 119 

V.  Lawson  81,  367 

V.  Pointer  537 

V.  Koberts  562 

V.  Scripps  40,  196,  198,  271 

V.  Small  536 

Foulger  v.  Newcomb  25,  67,  77,  115,  120, 

474 

Fountain  v.  Boodle  274,  275,  298 

V.  Kogers  121 

V.  West  298 

Fowell  V.  Cowe  71 

Fowler  v.  Aston  121 

V.  Dowdney  58 

V.  Gilbert    114,  162,  177,  271,  305 

V.  Homer  212,  221,  284 

Fowles  V.  Bowen  22,  31,  77,  202,  208,  270, 

273,  287,  321,  332 

V.  Chichester  162,  292,  298 

V.  Bobbins  56 

Fox  V.  Broderick  154 

V.  Wilson  271 

Francis  v.  Iloose  55,  106 

Fraiiklyn  v.  Butler  115 

Fray  v.  Blackburn  189 

V.  Fray  23,  94,  544 

Frazier  v.  McCloskey  271 

Frean  i:  Sargent  338 

Freeman  v.  Price  84,  169 

V.  Tinsley  274,  291,  306 


Freethy  v.  Freethy  347 
Frescoe  v.  May  157,  294,  457,  549 
Friend  v.  London,  Chatham,  &  Do- 
ver Ry.  Co.  518 
Frisbie  v.  Fowler  84 
Fry  V.  Bennett  177,  298 
V.  Carne  56,  121 
Fryer  v.  Gathercole  535 
V.  Kinnerftley  201,  239,  280 
Fuller  V.  Fenner  313 


G. 


Gabe  v.  McGinnis  6,  22,  94,  100,  291 

Gage  V.  Kobinson  389 

V.  Shelton  52,  114 

Gainford  l:  Tuke  58,  126 

Gale  V.  Leckie  374 

Gallwey  v.  Marshall      66,  72,  73,  83,  473 
Gandy  v.  Humphries  298 

Gants  V.  Vinard  178 

Garden  v.  Sedden  183 

Gardiner  v.  Atwater  127,  165 

Gardner  v.  Irwin  517 

V.  Slade  201 

Garnett  v.  Bradley  335,  468 

V.  Ferrand  442,  443 

Garr  v.  Selden  74,  191 

Garrels  v.  Alexander  533 

Garret  u.  Taylor  149,  359 

Garrett  v.  Dickerson  185 

Gascoigne  v.  Ambler  85 

Gaskin  v.  Balls  15 

Gathercole  v.  Miall     28,  47,  48,  242,  285, 

208,  355 
Gay  V.  Homer  55 

V.  Labouchere         506,  509,  510,  512 
Gazette  Co.  v.  Timbeilake  243 

Geary  v.  Physic  7 

Gee  V.  Pritcliard  13,  14 

Geisler  v.  Brown        22,  25,  308,  309,  540 
Gelen  v.  Hall  188 

George  v.  Goddard  236 

Georgia  v.  Kepford  55,  84,  122,  178,  321, 

323 
Gerard  (Sir  G.)  v.  Dickenson  143 

Gerard  v.  Risk  291,  202 

Getting  v.  Foss  212 

Gibbons  v.  London  Financial  Asso- 
ciation 499 
Gibbs  V.  Dewey  55 
Gibson  v.  Williams  94,  510 
V.  AVilson  84 
Giddens  v.  Mirk  114 
Gilbert  v.  People  183,  190,  191,  373 
Giles  r.  State  "2,  25 
Gill  V.  Bright  55 
Gillett  V.  BuUivant  .  168,  327,  332 
Gillis  V.  Peck  169 
Gilman  i-.  Lowell  305 
Gilpin  V.  Fowler  242,  208,  280,  535 
Giraud  v.  Beach  371 
Glass  V.  Stewart  371 
Glynn  v.  Houston                                  505 


TABLE   OF   CASES. 


XXIX 


Godard  v.  Gray  439 

Godilard  v.  Thompson  560,  5(54 

Goddart  v.  Haseltoot  76 

Godfrey  v.  Owen  59 

V.  Tucker  477 

Godson  V.  Home  209,  265 

Golderman  v.  Stearns  62 
Goldiiig  V.  Wliarton  Saltworks  Co.  49'.) 
Goldstein  v.  Foss              25,  115,  120,  212 

Gompertz  v.  Levy  104 

Gooilale  v.  Castle  61,  82 

Goodbarne  >:  Fothersill  56o 

Goodbread  v.  Leadbetter  306 
Goodbunie  v.  Bowman    27,  173,  340,  486 

Goodrich  v.  Davis  94,  540 

V.  Hooper  55 

V.  Warner "  151 

V.  Wooleott  84 

Goodtltle  V.  Badtitle  464 

Gorliam  v.  Ives  122 

Gorman  v.  Sutton  178,  274 

Gorton  v.  Keeler  182,  305 

Goselin  v.  Cannon  191 

Goslin  V.  Corry  311,  317,  320 

Gosling  V.  Morgan  84 

Gosset  V.  Howard  423,  435 

Gostling  V.  Brooks  78,  115 

Gott  r.>ulsifer  39,  40,  138,  271 

Gottbeliuet  i\  Hubachek  64,  66,  94 

Gough  V.  Goldsmith  328 

Gould  V.  Hulme  191,  237 

Gourley  v.  PlinisoU  486,  508 

Gove  V.  Blethen  64,  123 
Grant  v.  Banque  Franco-Egyptienne  563, 

564 

V.  Gould  195 

V.  Holland  5-56 

V.  Secretary  of  State  for  India  196, 

257 

Grater  v.  Collard  295 

Graves's  Case  126 

Gray  v.  Pentland  213 

1-.  West  334 

Greaves  v.  Keene  435 

Green  v.  Button  91,  149,  326 

V.  Chapman  50 

V.  Elgie  434 

V.  Sevin  498 

V.  Telfair  94 

Greenfield  v.  Reay  504 

Greenfield's  Case  80 

Greenwood  v.  Prick  6,  242,  265 

Gregory  v.  Atkins  94,  177 

V.  The  Queen  575 

V.  Williams  292,  320,  552 

Greville  v.  Chapman  24 

GrifSn  V.  Moore  56,  84,  113 

Griffiths  V.  Hardenburgh  374 

V.  Lewis     80,  114,  168,  231,  238, 

4-52 

Griggs  V.  Vickroy  84 

Grimes  v.  Coyle  169 

V.  Lovel  63 

Grissell's  Case  423 

Groenvelt  v.  Burwell  189 


Grove  v.  Hart 
Guard  v.  Kisk 
Guerdon  v.  Winterstud 
Gurney  v.  Longman 
Gutsole  V.  Mathers 
Guy  V.  Gregory 


348,  350 

151 

56 

14 

142,  470 

298.  325,  350 


Gwynn  v.  S.  E.  Rail.  Co.      173,  2-33,  548 

H. 

Hackett  v.  Brown  84,  177,  .305,  306 

Haddon  ;;.  Lott  lo9,  322,  326 

Hadjo  V.  Gooden  305 

Hahnemanuiaii  Life  Ins.  Co.  v.  Beebe  367 

Haines  v.  Welling  162 

Haire  v.  Wilson  23,  264,  265 

Hake  v.  Molton  125 

Hake  well  v-  Ingram  24,  558 

Haley  v.  State,  6,  84,  93,  271,  305,  536,  587 

Hall  V.  Adkins  121,  122 

V.  Hollander  352 

V.  L.  &  N.  W.  Ry.  Co.  610 

I'.  Montgomery  123 

V.  Nees  458 

V.  Smith  79,  81 

V.  Weedon  123 

Hall's  (Arthur)  Case  423 

Hallinan  n.  Price  342 

Halsey  v.  Brotherhood  144 

Hamilton  v.  Eno  6,  40,  185,  108.  236, 

271,292,302 

Hamilton  &  Co.  v.  Johnson  &  Co.        556 

Hamm  v.  Wickline  123 

Hammersmith     Skating    Rink    Co. 

V.  Dublin  Skating  RJnk  Co.        15, 144 
Hampton  v.  Wilson  169 

Hancock  v.  Guerin  516 

Hancocks  v.  Lablache  350 

Hand  v.  Winton  .56,  71,  100 

Hankinson  v.  Bilby  93,  94,  106,  107,  109, 

548 

Planning  v.  Bassett  151 

Hansborough  v.  Stinnett  112 

Harbison  r.  Shook  12-3,  178 

Harding  v.  Brooks  66,  298,  305 

V.  Greening  361 

Hardwick  v.  Chandler  75 

Hargrave  v.  Le  Breton  142, 144,  226,  264 

Harker  {/n  re)  v.  Fothcraill  563 

Harle  v.  Catlierall      40,  46,  2-36,  241,  453 

Harman  v.  Delany  31,  33,  79,  145 

V.  Harmon  271 

Harmon  ;'.  Harmon  271,  292 

Harnett  r.  Vise  216,  307,  336 

Harper  (Sir  J.)  v.  Beamond  70 

Harper  v.  Harper  177,  203 

Harrington  v.  Miles  122 

Harris  v.  Burley  100 

V.  Dixon  56 

7'.  Fleming  462 

V.  Petlicrick  338,  560 

V.  Purdy  ]28 

V.  Thompson     216,  218,  238,  270, 

544 


XXX 


TABLE   OF   CASES. 


Harris  v.  Warre  101,  424,  470 

Harrison  f.  Bevington  78,  81,  3(37 

V.  Bush    198,  222,  224,  287,  339 

V.  King  57,  125 

V.  Tearce  157, 159,  294,  314,  319, 

831,  302,  458,  549 

V.  Stratton  57 

V.  Tfiornborough       79,  97,  125, 

130 

Hart  V.  Coy  55,  100,  122 

V.  Gumpach  194 

V.  Wall       26,  34,  113,  141,  544,  641 

Hartlepool  Original  Colliery  Co.  v. 

Gibb  495 

Hartley  v.  Dilke  460 

1-.  Herring  72,  310,  311,  316,  320 


I'.  Hindmarsh 

546 

Hartsock  v.  Recldick 

193 

Hartwell  v.  Vesey 

238 

Harvey  v.  French 

24,  99,  106 

Harwood  v.  Astley 

236 

V.  Green 

29 

215,  288 

c.  Hard  wick 

324,  348 

Has'elton  v.  Weare 

120 

Hasley  v.  Brooks 

298,  306 

Hassell  v.  Capeot 

59,  85 

Hastie  v.  Hastie  (C.  A.) 

564 

Hastings  v.  Lusk              40, 

183, 

186,  190 

V.  Stetson 

328 

Hatch  V.  Lane 

200,  241 

V.  Potter 

6, 

169,  271 

Hatfield  v.  Gano 

55 

V.  Lasher 

305 

Haun  V.  Wilson 

298 

Hawkesley  v.  Bradshaw 

481,  492 

(C. 

A.) 

301,481, 
488,  493 

Hawley  v.  Reade 

301 

340,  501 

Hawn  V.  Smith 

122 

Haws  V.  Stanford 

177 

Hawver  v.  Hawver        151, 

178, 

274,  350 

Hayes  v.  Ball 

55,  122 

Hay  lock  v.  Sparke 

574 

Hayner  v.  Cowden 

66, 

271,  298 

Haynes  v.  Leland 

162 

V.  Ritchey 

84 

Hays  V.  Mitchell 

100 

Haythorn  v.  Lawson  32,  319,  324,  365,  367 
Haywood  v.  Nayler  126 

Hazelton  Coal  Co.  v.  Megargel  383 

Head  v.  Briscoe  351 

Hearne  v.  Stowell    28,  127,  158,  260,  550, 

559 
Hedley  v.  Barlow  43;  46,  545 

Heilman  v.  Shanklin  169,  177 

Helsliam  v.  Blackwood   45,  170,  172,  485 
Heming  v.  Power  55,  62,  123 

Heramings  v.  Gasson  104,  230,  277 

Henderson  v.  Broomhead  191,  193 

Henry  v.  Norwood  305 

Henwood  v.  Harrison  44,  211 

Heriot  r.  Stuart  30,  32,  49 

Hewetson  v.  Whittington  Life  Insur- 
ance Society  502 
Hewitt  V.  Pioneer  Press  Co.  162 


Hext  V.  Yeomans 
Hey  V.  Moorhouse 
Heymann  v.  The  Queen 
Hibbins  v.  Lee 
Hibbs  V.  Wilkinson 
Hickinbothara  v.  Leach 
Hickley  v.  Grosjean 


52,  230, 
111,  178, 
110, 


Hicks'  (Sir  Baptist)  Case,  R.  v.  Garret 

Higginson  v.  Flaherty 

Highmore  v.  Earl  of  Harrington  64, 

Highton  V.  Treherne  560,  562, 

Hill  V.  CampbeU 
V.  Ward 

Hill's  Executors  v.  Metropolitan  Dis- 
trict Asylum  337, 

Hilliard    (Sir    Christopher)   v.   Con- 
stable 

Hilton  V.  Muzzy 

Hinkle  v.  Davenport  162,  271, 

Hinrichs  v.  Berndes 

Hirst  V.  Goodwin 

Hix  V.  Drury  274, 

Hixe  V.  Hollingshed 

Hoar  V.  Ward  84,  121,  139,  183,  188, 

Hoare,  Ex  pade 
V.  Dickson 

V.  Silverlock  22,  23,  106,  239, 
539,  544, 
Hobbs  V.  Bryers 

Hodges  V.  State  373, 

Hodgkins  v.  Corbet  85, 

Hodgson  V.  Scarlett 
Hoey  V.  Felton 
Hogan  V.  Wilmoreth 
Hogg  V.  Dorrah 
V.  Wilson 
Holland  v.  Stoner 
Hollingsliead's  Case 
HoUingworth  v.  Brodrick 

V.  Shaw 
Hollis  (Sir  John)  r.  Briscow 
Holmes  v.  Catesby  77, 

V.  Mountstephen 
Holt,  In  re 

(Sir  Thomas)  v.  Astrigg 
V.  Parsons 

V.  Scholefield     56,  60,  102,  123, 
Holton  V.  Muzzy 
Holwood  V.  Hopkins 
Home  V.  Bentinck  189,  195, 

Homer  v.  Engelhardt 

V.  Taunton  24,  106, 

Honess  v.  Stubbs 
Hooker  v.  Tucker 
Hooper  v.  Martin 

V.  Truscott  221,  265, 

Hopkins  v.  Smith  123, 

Hopkinson  v.  Lord  Burghley 
Hopper  i\  Warburton 
Hopwood  r.  Thorn   73,  82,  204,  206, 
232,  310,  316, 
Horn  V.  Foster 


122 

489 
586 
45 
271 
485 
537 
23. 
383 
190 
73, 
558 
563 
519 
138 

565 

72 
308 
370 

16 
330 
485 

85 
190, 
313 
382 
545 
244, 
560 
273 
383 
131 
190 
322 
123 

71 
122 

96 

85 
466 

54 

71 
485 
566 
431 
119 
237 
295 
100 
332 
536 

23 
539 
486 

79 
114 
268 
178 
518 
454 
211, 
320 
123 


TABLE   OF   CASES. 


XXXI 


Home  V.  Hough  507 

Horner  v.  Marshall's  Administratrix  354 
V.  Oyler  34o 

Hort  V.  Reade  177,  483 

Horton  v.  Banner  480 

Horwell  v.  London  General  Omnibus 

Co.  481 

Hosley  v.  Brooks  298,  306 

Hotchkiss  t'.  Oliphant  299 

V.  Olmstead  55,  94 

Houghtaling  v.  Kelderhouse  298 

Iloulden  i-.  Smith  188 

House  V.  House  114 

Hovey  v.  Rubber  Pencil  Co.  138 

■How  V.  Prin  69,  71,  121,  236 

Howard  v.  Cosset  423,  435 

V.  Sexton  271 

V.  Stephenson  55 

Howe  V.  Buffalo  &  Erie  Ry.  Co.  374 

Howe  Macliine  Co.  v.  Souder  94,  368,  540 
Howell  V.  Howell  169 

Hoyt  V.  McKenzle  15 

V.  Smith  458 

Hubbard  v.  Rutledge         6,  198,  208,  298 
Huekle  v.  Reynolds  56,  131,  351 

Huddleson  v.  Swope  84 

Hudson  r.  Tooth  431 

HufE  V.  Bennett  151,  157,  271,  362 

Huffman  v.  Shumate  537 

Huggons  V.  Tweed  500 

Huggonson's  Case  13 

Hughes  V.  Porral  438 

Hugley  V.  Hugley  93 

Hull  V.  Vreeland  54 

Hume  V.  Arrasniith  122 

V.  Marshall  66,  212,  282 

Humphreys  v.  Miller  212,  539 

V.  Stanfield  139 

V.  Stilhvell  236 

Humphries  v.  Parker  298 

Hunt  V.  Algar  27,  100,  159,  552 

V.  Bennett  94 

V.  City  of  London  Real  Prop- 
erty Co.  561 
V.  Goodlake      25,  94,  101,  117,  544 
V.  Jones  310 
Hunter  v.  Sharpe                               51,  102 
Huntley  i.-.  Ward    199, 205, 227, 229,  264, 

279 
Hurd  V.  Moore  151 

Hurst  V.  Bell  547 

Hurtert  v.  Weines  151 

Huson  V.  Dale  6,  162,  177,  305 

Hutchinson  v.  Glover  517,  518 

V.  Hartmont  432 

Hutton  V.  Harrison  428 

Hutts  V.  Hutts  123, 151,  178,  187 


I' Anson  v.  Stuart  23,  131,  177,  485 

Idol  V.  Jones  61 

Imperial  Land  Co.  of  Marseilles,  Re    527 
Indianapolis  Sun  Co.  v.  Horrell  291 


In  galls  V.  Allen  54 

Ingram  v.  Lawson    34, 132, 1.37, 160,  311, 
319, 320.  455,  543 
Inman  v.  Foster  162,  164,  271 

V.  Jenkins  504 

International   Financial    Society   v. 

City  of  Moscow  Gas  Co.  (C.  A.)     563 
Ireland  v.  Champneys  S-jo 

Irons  V.  Field  62,  63 

Irwin  V.  Brandwood  29,  06 

Isaacs,  Ex  parte  467 

Iseley  v.  Lovejoy  291 

Isham  V.  York  71 


J. 


Jackson  v.  Adams  62,  273 
V.  Hopperton  203,  208,  275 
V.  Mawby  435 
Jacob  V.  Lawrence  '                 227 
V.  Mills  62 
Jacobs  V.  Fyler  123 
James  v.  Boston  217,  "223 
V.  Brook  78,  339 
V.  James  '                   15 
V.  Jolly  212 
Jarman  v.  Lucas  463 
Jarnigan  v.  Fleming  9,  94,  162,  164 
Jarvis  v.  Hathaway  237 
Jauch  V.  Jauch  .                         306 
Jefferies  v.  Buncombe  8,  22 
Jekyll  V.  Sir  John  Moore  189 
Jenkins  v.  Morris  (C.  A.)  561 
V.  Smith  74 
Jenkinson  v.  Mayne  55 
Jenner  v.  A'Beckett  26,  3.3,  51,  79,  113 
Jennings  v.  London   General  Omni- 
bus Co.  566 
V.  Paine  190 
Jesson  V.  Hayes  80,  137 
Joannes  v.  Bennett  198,  207,  210 
Jolinasson  r.  Bonhote  477 
Johns  r.  Gittings  80 
V.  James  506 
Johnson  v.  Aylmer  119 
V.  Brown  55,  183,  187,  191 
V.  Browning  178 
V.  Dicken  54 
V.  Evans  193,  220 
V.  Hudson  158,  535 
V.  Lemmon  78 
r.  Palmer  569 
V.  Robertson  76 
V.  St.  Louis  Despatch  Co.      93, 
121,  122,  162,  368 
V.  Shields  54,  55 
V.  Simonton  31,  177 
V.  Smith  520 
V.  Stebbins  22 
Jolmston  V.  Tait  537 
JoUiffe,  Ex  parte,  R.  v.  Lefroy      442,  446 
Jones,  Ex  parte  430,  436 
r.  Baxter  561 
V.  Bewicke  486 


xxxu 


TABLE   OF   CASES. 


Jones  V.  Broadhurst 
V.  Cliapman 
V.  Davers  vel  Dawkes 


no, 


V.  Davis 

V.  iJiver 

V.  Edwards 

V.  Heme  55,  60,  86, 

V.  Hough 

V.  Hungerford 

V.  Littler  70,  79,  124 

V.  Mc  Govern 

V.  Mackie  300,  301, 

V.  Marr 

V.  Monte  Video  Gas  Co.     50& 

V.  Orchard 

V.  Pritchard 

V.  Stevens  177,  305, 

Jourdain  v.  Pahner 
Justice  V.  Gosling 
V.  Kirlin 


489 
56 
130, 
471 
562 
76 
537 
122 
561 
114 
541 
249 
487 
123 
520 
579 
466 
531 
506 
549 
298 


K. 

K V.  H 

Ivain  V.  Farrer 
Kane  v.  Mulvany 
Karney  v.  Paisley 
Kaucher  v.  Blinn 
Kean  v.  McLaugldin 
Keble  v.  Hickeringill 
Keene  v.  Ruff 
Kecnholts  r.  Becker 
Keesling  o.  IMcCall 
Keighley  v.  Bell 
Kelly  V.  Craig 

V.  Partington 
V.  Slierlock 
V.  Tinling 
Kemp  V.  Neville 
Kendall  v.  Stone 
Kendillon  v.  Maltby 
Kennedy  v.  Gifford 


I'.  Ililliard 
Kenney  v.  McLaughlin 
Kent  V.  Bonzey 

V.  David 

V.  Lewis 

V.  Stone 
Kerr  v.  Shedden 
Kerry  (Earl  of)  v.  Thorley 
Kerschbaugher  v.  Slusser 
Kershaw  t'.  Bailey 
Keyworth  v.  Hill 
Keyzor  v.  Newconib 
Kielley  v.  Carson 
Kiene  v.  Ruff 
Kilniore  v.  Abdoolah 
Kimball  v.  Fernandez 
Kinimis  v.  Stiles 
Kincade  v.  Bradshawe 
Kine  v.  Sewell 


84 

519,  521,  535 

35,  187,  253,  259 

298 

62 

271 

149 

151 

271,  331,  332,  537 

94,  267 

193,  195 

480 

89,  114,  275,  326 

41,  292,  295,  307,  559 

28,47 

189 

138 

168,  190,  S32 

84,  93,  94,  121,  122, 

169,  271 


192 
102 
299 

169,  177 

334 

315 

322 

5,  22 

110,  537 


224,236,239,271,285 
372 
31,  159 
424,  425 
110 
559 
22,  40,  236,  305 
61,  123 
178 
204,  217,  226,  231,  233, 
238 


King  V.  Bagg  123 

King  u.  Davenport  522 

V.  Hawkesworth  338,  570 

V.  Hoare  457 

V  L  ike  5,  74 

V.  Root  207,  412 

V.  Waring  108,  232 

V.  Watts  209,  218 

V.  Whitley  or  Whitby  536,  537 

V.  Wood  25,  53 

Kinnalian  v.  McCullagh  106,  242 

Kinney  v.  Nash  70,  100 

Kinyon  v.  Palmer  100 

Kivby  V.  Simpson  188,  487 

Kleizer  v.  Svmmes  237 

Klinck  V.  Colby  185,  204,  274 

Klumph  V.  Dunn  54,  84,  298 

Knickerbocker  Life  Ins.  Co.  v.  Ec- 


clesine 
Knight  V.  Gibbs 
r.  Lynch 

V.  Purcell 
•     V.  Sharp 
Knobell  v.  Fuller 
Knowles  v.  State 
Kaenig  v.  Ritchie 
Kramer  v.  Way  mark 
Krebs  v.  Oliver 
Krehl  v.  Burrell  (C.  A.) 
Kynaston  v.  Mackinder 


367 

326,  327 

86,  88,  312,  319,  323, 

324,  325,  326,  349 

340 

123 

306 

404 

52,  229 

3-55 

57,  210 


561 
336 


L. 


La  f one  v.  Smith  300,  301 

Lake  i-.  King     152, 187, 222,  242,  245,  284 

517 

317 

156,  386 

305 

565 

305 

67,  80 

151 

489 

54 

4.32 

341 

100,177,305,541 

191 


I'.  Pooley 
Lamb  v.  Walker 
Lamb's  Case 
Lambert  v.  Pharis 
Laming  v.  Gee  (C.  A.) 
Lamos  i-.  Snell 
Lancaster  v.  French 
Landa  v.  Obert 
Lane  v.  Applegate 
Langdon  v.  Young 
Langley,  Ex  parte, 
Langridge  v.  Campbell 
Langton  i'.  Hagerty 
Lanning  r.  Christy 
Lanter  v.  McEwen  178 

Large  v.  Large  569 

Larkins  v.  Tarter  162 

Latimer  v.  Western  Morning  News      368 
Laughton  v.  Bishop  of  Sodor        230,  235 
Laurcnson  v.  The  Dublin  Metropoli- 
tan Junction  Railway  Co.  461 
Lauretta,  The  565 
Law  V.  Harwood                                      141 
Lawler  v.  Earle                              208,  220 
Lawless  v.  Anglo-Egyptian  Cotton 
&  Oil  Co.             152, 235,  242,  283,  284, 
368,  532 


TABLE   OF   CASES. 


XXXUl 


Lawrence  v.  Smith  374 

V.  Woodward  56 

Lawson  v.  Hicks  183,  190,  191,  5:11 

Lay  V.  Lawson  2ii,  216,  283 

Lea  V.  White  183,  191 

Leach's  Case  574 

Leader  v.  State  298,  305 

Lee  V.  Colyer  .       494 

V.  Huson  273 

V.  Kane  93 

V.  Riley  327 

Le  Fanu  i;.  Malcomson    32, 129, 130, 319, 

324,  365,  367 

Lefroy  v.  Burnside  171,  514,  619 

Lehning  v.  llewett  -      169 

Leicester  (Earl  of)  v.  Walter        305,  306 

Lentner  i'.  Merfield  204 

Leonard  v.  Allen  94,  305,  540 

V.  Pope  271 

Lester  v.  Thurmond  183,  190,  191 

Lethbridge  v.  Cronk  508 

Lettman  V  Ritz  110 

Letton  V.  Young  271 

Leversase  v.  Smith  56 

Level's  Case  78,91,350 

Levi  V.  Milne  105, 130,  550,  552,  558 

Levy  I'.  Lawson  249 

V.  Moylan  443,  446 

Lewes  v.  Walter  131,  165 

(Earl  of)  V.  Barnett  432 

Lewis  V.  Black  540 

V.  Chapman  269,  298 

V.  Clement      29,  99,  172,  256,  291, 

486 

V.  Eew  40,  183,  236,  531 

V.  Hawley  78 

V.  Hudson  84,  93,  100 

V.  Levy    44,  99,  176,  243,  245,  247, 

248,  256 

V.  Soule  123 

r.  Walter        45, 163,  164,  176,  253 

Lewknor  i'.  Cruchley  55 

Leycroft  v.  Dunker  79 

Leyman  v.  Latimer    24,  58, 171, 177, 485, 

497,  603 

Liberia  (Republic  of)  v.  Roye  431 

Lick  V.  (jwen  6 

Like  V.  McKinstry  138 

Lincohi  i-.  Chrisman  271 

(Earl  of)  U.Fisher  440 

Lindsey  v.  Smith  71 

Linncy  i'.  Maton  84 

Linville  v.  Earlywine  54,  580 

Lister  v.  Ferryman  214,  278 

V.  Wright  54 

Little  V.  Barlow  57 

V.  Thompson  46,  429,  430 

Litton  V.  Litton  590 

Lloyd  V.  Jones  559 

V.  Morley  515 

Logan  V.  Steele  114 

London  i'.  Eastgate  77 

Long  I'.  Brougher  169,  305 

V.  Eakle  6,  169 

V.  Fleming  536 


Long  V.  Peters  204 

Lovejoy  v.  Murray  458 

Loveland  v.  Hosmer  169 

Lovett  ('.  Wilier  143 

Lowe  V.  Harewood  138 

I'.  Lowe  561 

Lows,  Ex  parte,  564 

Lucan  (Earl  of)  v.  Smith  483 

Lucas  V.  Case  237 

V.  Flinn  61 

i\  Kichols  84 

Lnkehart  v.  Byerly  100,  305 
Lumby  v.  Allday                  66,  78,  84,  293 

Lumley  v.  Gye  322,  326 

Luthan  v.  Berry  169 

Luther  v.  Skeen  305 

Lynam  v.  Gowing  191,  254 
Lynch  v.  Kniglit        86,  88,  312,  3)9,  323, 
324,  325,  820,  349 

Lyon  V.  Tweddell  506 


M. 

M.  Moxham,  The  527 

Macaulay  v.  Shakell  527 

Macgill's  Case  429 
Macinto'sh  v.  Great  Western  Railway 

Co.  510 
Mackay  v.  Ford  190 
Mackereth  v.  Glasgow  &  South-west- 
ern Railway  Co.  461 
Macleod  v.  Wakley  52,  276,  534 
McAleece,  In  re  437 
McAlmont  v.  McClelland  271 
McAnally  v.  Williams  123 
McAndrew  v.  Barker  563 
McBee  v.  Fulton        1,  169, 178,  243,  298, 

490 

McBrayer  v.  Hill  84 

McBiide  v.  Ellis  22 

McCabe  v.  Foot  57 

McCaleb  v.  Smith  93,  122 

McCarty  v.  Barrett  122 

M'Cauley  v.  Thorp  525 

McCliiughr}' y.  Wetmore  123 

McClintock  v.  Crick  306 

McCombe  v.  Gray  435 

McCombs  V.  Tuttle  152 

McCorckle  v.  Binns  22 

M'Corquodale  v.  Bell  509,  518 

McCue  V.  Ferguson  94,  274 

McCurry  v.  McCurry  122,  305 

McDaniel  v.  Baca  138 

McDermott,  In  re  438 

McDougnll  V.  Claridge  235 

McDowell  V.  Bowles  53 

M'Klvoney  v.  Connellan  535 
McFadzen  i-.  Mayor  &  Corporation 

of  Liverpool  505 

McGlennery  r.  Keller  271 

McGough  r.  Rliodes  123 
McGregor  v.  Gregory      24,  169,  176.  244 

V.  Thwaiies  165,  193 

Mclntire  v.  Young  291 


XXXIV 


TABLE   OF   CASES. 


Mclntyre  v.  McBean 

McKee  v.  Ingalls  6,  57,  122, 

McLaughlin  v.  Bascom 

V.  Cowley    183, 188, 100, 


V.  Kussell 
M'Loughlin  v.  Dwyer 
McMillan  v.  Birch 
McNair  v.  People 
McNally  v.  Oklliam 
McNamara  r.  Shannon 
McNutt  V.  Young 
MTherson  v.  Daniels 


94,  lol, 
483, 


162, 163, 164, 
i:4,  175 


MeStephens  v.  Carnegie 
Magratli  v.  Finn 
Maguire  v.  Knox  102, 

Maitland  v.  Bramwell  214, 

V.  Goklney  163,  367, 

Malachy  v.  Soper  138,  139, 

Malone  v.  Stewart 
Maloney  r.  Bartley        156,  193,  350, 
Manby  v.  Witt  203,  226, 

Manchester,     &,c.    Railway    Co.    v. 

Brooks 
Mann  v.  Hants 
Manning  v.  Avery 

v.  Clement  547, 

Mansel,  In  re,  liiiodes  v.  Jenkins 
Mansergh,  Re 
IMansfield  v.  Childerhouse 
Mapes  V.  Weeks  169, 

Mapleson  >'.  Masini 
March  v.  Davison 
Markham  i-.  Russell 
Marlborough  (Duke  of),  Ex  parte 


Marriott  v.  Jlarriott 

Marsden  v.  Lancashire  &  Yorkshire 

Railway  Co. 
Marsh  v.  Ellsworth  183, 

V.  Isaacs 
Marshall  v.  Addison 

V.  Martin 
Martano  v.  Mann 
Martin  v.  Bannister 

V.  Butcliard 

V.  Hooker 

V.  Loci  106,  109, 

r.  McKonocliie 

V.  Martin 

V.  Stilwell 

V.  Strong  238,  239, 

V.  Van  Schaith 

V.  Wright 
Martin's  Case  429, 

Martyn  v.  Burlings 

V.  Williams 
Marzetti  v.  W^illiams 
Masliam  v.  Bridges 
Mason  v.  Brentini 

V.  Jennings 

V.  Thompson 
Massoy  v.  Allen  356, 

Mathews  v.  Huntley 
ilatthew  V.  Crass 


224 
169 

93 
191 
540 
515 

66 
404 
219 
122 
305 
165. 
471 
462 
242 
483 
238 
537 
141 

53 
384 
285 

370 
151 
140 
549 
563 
195 
508 
305 
495 
76 
271 
381, 
440 
498 

337 
190 
557 

61 
335 
346 
446 
518 
298 
549 
431 
305 

56 
310 
355 

14 
434 

75 

537 

8 

71 
342 
9 
122 
467 
178 
310 


Matthews  v.  Beach 
Mawe  V.  Pigott 
May  V.  Brown 
Maybee  i".  Fisk 
Mayhew  v.  Locke 


94,  243 

26 

29,  297,  307,  537 

160 

442 


Maynard  v.  Beardsley  306 

V.  Fireman's  Ins.  Co.  93, 94,  368 
Mayne  v.  Fletcher  6,  154,  159,  387,  531 
Mayo  r.  Sample  220 

May  rant  v.  Richardson  40,  65,  71 

Mead,  In  re  431 

V.  Daubigny  272,  276 

Meagher  v.  Moore  88,  311 

Mears  v.  Griffin  559 

Medhurst  v.  Balam  312 

Meggs  V.  Griffith  127,  165 

Mercer  v.  Sparks  472 

V.  Whall  530 

Mercers  Co.,  £'x;3arte  335 

Mercier  v.  Cotton  501,  510 

Merest  v.  Harvey  83 

jNIerk  v.  Gelzliaeuser 
I\Icrrill  V.  Peaslie 
Merritt  v.  Dearth 

Merryweather  v.  Nixan  359, 

Metropolitan  Inner  Circle  Railway 

Co.  V.  Metropolitan  Railway'  Co. 
Metropolitan  Omnibus  Co.  v.  Hawk- 
ins 2,  32,  178,  368,  369,  516 


178 

536 

84 

372 

523 


Meyer  v.  Bohlfing 

V.  Schleichter 
Michel  V.  Wilson 
jMickeltliwaite  v.  Fletcher 
Milam  v.  Biirnsides 
IMiles  V.  Harrington 

I.'.  Oldfield 

V.  Van  horn 
Milissich  v.  Lloyds 
Miller  v.  Buckdon 

V.  Butler 

V.  David 

V.  Graham 

V.  Hope 

V.  Johnson 

V.  Kerr 

V.  Maxwell 

V.  Miller 

V.  Parish 
Milligan  v.  Tliorn 
Millison  v.  Sutton 
Mills  V.  Spencer 

V.  Taylor 
Milman  r.  Pratt 
Minnehaha 
Minors  r.  Leeford 
Mi'cliell  V.  Brow'n 
Mix  r.  Woodward 
Moberly  v.  Preston 
Moises  V.  Thornton 
Mofongahela  Nav.  Co.  v.  Coons 
^lontgomery  r.  Dceley 
Moody  V   Steward 
Moon  V.  Towers 
Moone  '".  Rose 
Moor  (Sir  George)  v.  Foster 


271,  392 

84 

474 

486 

187 

806 

53 

55,  298 

251,  252,  254,  527 

122 

94,  540 

90,  117,  323,  474 

480 

189 

93,  151,  306 
162,  271 

93,  121 

121,  537 

84 

■  540 

84 

165,  302,  305 

55 

141 

512 

109,  119,  122 

96 

94,  271,  540 
160 

69,  531 
!'3 
54 


567, 


569 

361 

435 

70 


TABLE  OF   CASES. 


XXXV 


Moor  V.  Roberts 
Moore,  In  re 

V.  Bond 

V.  Meagher 

V.  Stevenson 

V.  Terrell 
Mordaunt  v.  Mordaunt 
More  V.  Bennett 
Morgan  v.  Booth 
V.  Lingen 
V.  Livingston 
Morris  v.  Barker 

V.  Freeman 

V.  Langdale 

V.  Scott 
Morrison  v.  Belcher 
V.  Harmer 
Mortimer  v.  M'Callan 
Mot  f.  Butler 
Molt  v.  Comstock 

V.  Dawson 
Mountney  v.  Watton 
Mower  V.  Watson 
Muchler  v.  Mulhollin 
Miilkern  v.  Ward 
Mull  r.  Mc Knight 
Mullett  V.  Hulton 
Mulligan  v.  Cole 
Mulock,  Re 
Munroe  v.  Pilkington 
Murdoch  V.  Warner 
Murphy  v.  Ilalpin 
Miu-ray  v.  McAllister 
Murrey's  Case 
Musgrave  v.  Bovey 
Myers  v.  Defries 

V.  Dresden 


505,  508 
42o 

53(3 

88,  311 

271 

30, 4b5 

26-1,  353 

24,  94,  106,  375 

6,  1»3,  190,  lul 

23 

94,  540 

298 

347,  533 

79,  81,  111,  326 

v9 

50 

34,  51,  170,  48ti 

8,  536 

122 

78 

40,  178,  208 

99,  170,  172 

123 

123 

13,  15,  43 

123,  177 

302 

26,  117,  228,  514 

430 

43a 

454 

52,  220 

54 

124 

73 

248,  269,  339 

94 


N. 

Naden  v.  Micocke  558 

Najjier  v.  Daniel  55S 

Nash  V.  Benedict  55 

National  Funds  Ins.  Co.,  In  re  563 

Ne;ile  v.  Clark  342 

Nelson  v.  Borchenius  93,  94 

,        V.  Musgrave  22 

Neve  V.  Cross                               .  55 

Newbit  V.  Statuck  56 

New  British  Co.  v.  Peed  517 

Newley  v.  Van  Offen  4ol 

Newman  v.  Bailey  177,  485 

V.  Zachary  140 

Newton,  Ex  fxiite  587 

V.  Boodle  347.  5-53 

V.  Chaplin  536 

V.  Stubbs  470 

Nicholl  V.  Jones  618 

Nichols  V.  Guy  62 

V.  Ha3'es  637 

Nicholson  v.  Jackson  494 

•     V.  Lyne  72 

Niven  i\  Munn  123 

Nixon  V.  Harvey  483 


Noel  '•.  Noel 
Nolan  V.  Traber 
Noonan  v.  Urton 
Norman  ?'.  Johnson 

V.  Urton 
Norris  v.  Elliot 
V.  Smith 
North  V.  Bilton 


467 
6,  100,  151.  292,  350 
267,  458,  490 
338 
114 
271 
453 
336 


Nunliaiupton's  (Earl  of)  Case      127,  162 
Nutt's  Case  161,  363,  413 


o. 

Oake  I'.  Moorecroft 
Oakley  v.  Farrington 
Oastler  v.  Henderson 
CBii^n  V.  Brvant 


463 

80 

560 

172 


V.  Clement    21,  23,  24,  265,  301, 

493 
O'Conner  v.  O'Conner  177,  305 

Oddy  V.  Lord  George  Paulet  79,  227,  240 

2S6 
Odger  I'.  Mortimer  52,  557 

Odiorne  v.  Bacon  61 

O'Donoghue  r.  Hussey   52, 168,  229,  230, 

281 
V.  McGovern  182,  237 

Offutt  V.  Earlywine  54,  580 

Ogden  V.  Turner  54,  57,  59,  85 

O'Hanlon  i;.  Mvers  54 

O'Keete  v.  Cardinal  Cullen  487 

Oldliau)  V.  Peake  55,  96,  121,  125,  323 
Oliver  /;.  Bentinck  189,  196,  197,  2-57 

Olmsted  v.  Miller  312,  536 

Onslow  V.  Home  54, 70,  71,  139,  236,  293, 

311 
Onslow's  Case  447 

Oraam  v.  Franklin  64 

Ornie  v.  Lodge  169 

Ormsby  v.  Douglass  198,  212 

Orpwood  r.  Barkes  or  Parkes  79, 115, 597 
Orr  V.  Skofield  22,  31 

Osborn  v.  London  Dock  Co.  504 

Ostrom  V.  Calkins  80 

Owens  r.  Woosman  566 

Oxford  V.  Cross  59,  85,  86 

P. 


Padmore  v.  Lawrence   220, 

221, 

274,  284, 

285 

Paine  v.  Mondford 

56 

P.illet  r.  Sargent 

169 

Palmer  v.  Anderson 

122 

V.  Buyer 

74 

V.  Cohen 

355 

V.  Concord 

40, 185 

V.  Haight 

169 

V.  Harris 

110 

V.  Hoskins 

298 

V.  Roberts 

566 

V.  Smith 

169 

Pannell  v.  Nunu  (C.  A.) 

560 

XXXVl 


TABLE   OF   CASES. 


Paris  V.  Levy  34,  51,  188,  271 

Parke  v.  Pie(lmont  Ins.  Co.  55,  100 

Parker  v.  McQueen  1G2,  177,  208 

V.  Mender  55 

Parkes  v.  Prescott  156,  361,  362 

Parkliurst  v.  Ketchum  169,  305 

Parkins  v.  Scott      167,  32-3,  329,  330,  332 
Parmer  v.  Anderson  271 

Parmiter  v.  Coupland    27,  28,  40,  43,  95, 

550 
Parret  v.  Carpenter  73 

Parsons  v.  Snrgey  243,  285 

V.  Tinling  335,  469 

Pashler  v.  Vincent  432 

Pasley  v.  Kemp  121,  537 

Pasquin's  Case  ^^7 

Pater,  Jn  re  42J 

y.  Baker  138,144,271 

Paterson's  Case  399 

Patterson  v.  Edwards  84 

V.  Wilkinson  84,  123 

Pattison  V.  Jones  202,  209,  2«7 

Paull  V.  Halferty  138 

Payne,  Ex  parte,  In  re  Cross  ^     564 

V.  Beuwmorris  72,  310 

V.  Courthope  487 

Payson  v.  Macomber  480,  537 

Peacham's  Case  411 

Peake  v.  Oldham  55,  93,  96, 121,  125,  323 
V.  Pollard  94 

Pearce  v.  Ornsby  99,  296,  539 

V.  Rogers  471 

V.  Watts  477 

Peard  v.  Jones  39,  68,  74 

Pearson  v.  Lemaitre       99,  272,  274,  276, 
296,  303,  551 
Pease  v.  Sliippen  305 

Pegram  v.  Stolz  ^23  537,  580 

Pemberton  v.  Colls  72,  i3,  ^9o 

Penfold  V.  Westcote  l*^-' 

Pennington  v.  Meeks      271,  458,  536,  537 
Pennyman  i'.  Rabanks  143 

Penters  r.  England  371 

People  V.  Crosswell  ^j 

V.  Girardin  404 

V.  lluggles  394 

V.  Wilson  426 

Peppiatt  V.  Smith  506,  507 

Perdue  v.  Burnett  ^4 

Perkins  v.  Mitchell  4'J 

V.  Scott  /^o 

Perren  v.  Monmouthshire  Ry.  Co.  ^  4»1 
Perry  v.  Man  ^'^'„ 

^  V.  Porter  120,  122.  151,  389 

Perry's  Case  4-29 

Perrvman  i'.  Lister  ^>-%  ^^» 

Persilly  r.  Bacon  ^o 

Peterborough  (Lord)  v.  Wilhams        lob 
Peters  v.  Ulmer  480 

Peterson  v.  Morgan  .rmniV' 

V.  Sentman  56,100,  \\1 

Petrie  r.  Rose  \'' 

Pettil)()ne  v.  Simpson  ^^" 

Pharmaceutical  Society  v.  T>ondnn 
&  Provincial  Supply  Assoc.      o67,  oby 


Philips  V.  Badby  ■ 
Phillimore  v.  Machon 
Phillips  V.  Barber 
V.  Barnet 
V.  Barron 
V.  Hoefer 
V.  Iloyle 
V.  Jansen 


73 
402,  403 

122 

i!:2 

507 

78 

313,318 

65,  75,  580 


V.  L.  &  S.  W.  Ry.  Co.  292 

V.  Routh  51 1 

Phosphate  Sewage  Co.  v.  Hartmont    432 


591 

206,  211,  279 

236,  241,  260 

569 

59 

63 

410 

254 

298 

9 

356,  467 

142 


Pickering  v.  Stevenson 

Picton  V.  Jackman 

Pierce  v.  Ellis 

Pierpoint  v.  Cartwright 

Pierrepoint's  Case 

Pike  i\  Van  Wormer 

Pine's  (Hugh)  Case 

Pinero  v.  Goodlake 

Pink  V.  Catanich 

Pippet  V.  Hearne 

Pisani  v.  Lawson 

Pitt  V.  Donovan 

Pitten  V.  Chatterburg 

Pittock  V.  O'Niell 

Pitts  V.  Pace 

Plat  to  V.  Geilfuss 

Plum  V.  Normanton  Iron  Co. 

Plunket  V.  Gilmore 

Plunkett  V.  Cobbett 

Pocock  V.  Nash 

Poe  V.  Grever 

V.  Mondford 
Poe's  Case 
Polini  V.  Gray 
Pollard,  In  re 

V.  Green 
V.  Lyon 
Polston  V.  Lee 
Pool  V.  Devers 

V.  Sacheverel 
Poole  V.  Whitcomb 
Popham  V.  Pickburn 
Poplett  V.  Stockdale 
Porter  v.  Botkins 
V.  Choen 
V.  Henderson 
Potter  V.  Chambers 
V.  Cotton 

V.  Home  &  Colonial  Assur- 
ance Co. 
V.  Thompson 
Powell  V.  Jones 
Power  V.  Shaw  O;-^ 

V.  Price  '^'^ 

Powers  V.  Gary  6,  169, 177,  305,  498 

V.  Presgroves  305,  3()(> 

Pratt,  7/i  re  g^ 

V.  Andrews  ^^° 

V.  Gardner  ^   ^p^ 

Preston  v.  Pinder  55,  123 

Price  V.  Harris  "J^J 

V.  Hutchison  •         431 

V.  Jenkings  471 

V.  Whitely  22 


508 

6,94 

94 

22,31 
528 


274 
73 

54 

76 

122,  124 

467 

438 

452 

84,  317 

178,  298 

274,  298 

430 

552 

105, 176,  261,  283 

374 

177 

55,  57,  122 

306 

311 

560 


492 


537,  5B0 
39,  68,  75 


TABLE   OF   CASES. 


XXXVll 


Pricharcl  v.  Lloyd 

Prickett  v.  Gratrex 

Pridham  v.  Tucker 

Prime  v.  Eastwood  271,  313, 

Prinne  v.  Howe 

Prior  V.  Wilson  80, 

Proby  V.  Marquess  of  Dorchester 

Proctor  V.  Houglitaling  84,  169,  177, 


V.  Owens 
Prosser  v.  Rowe 
Proud  V.  Hawes 
Prowse  V.  Loxdale 
Prudential  Assurance  Co.  v.  Knott  13 

436, 
Prudliomme  v.  Fraser 
Pudsey  Coal  Gas  Co.  v.  Corporation 

of  Bradford 
Pugh  V.  McCarty  94,  123, 

V.  Neal 
Purcell  V.  Sowler  40,  41,  46, 165,  260, 
Purdey  v.  Stacey 

Purnell  v.  G.  W.  Ry.  Co.  and  Harris 
Pybus  V.  Scudamore 
Pye  V.  Wallis 


122 
445 
114 

328 

71 

225 

136 

274, 

305 

84 

178 

75 

545 

,15, 

454 

339 

31 
306 
123 

283 

70 

557 

529 

63 


Quin  V.  Hession 
V.  O'Gara 
V.  Scott 


Q- 


R. 


230,  307,  494 

122 

182,  305 


Rafael  v.  Ongley  460 

Rainy  v.  Bravo  471,  536 

V.  Justices  of  Sierra  Leone        439 


Ralph  V.  Carrick 
Ram  V.  Lamley 
Ramadge  v.  Rj'an 
Ramey  v.  Thornberry 
Rammell  v.  Otis 
Ramsey,  In  re 
Ramsdell  v.  Greenacre 
Ramsden  v.  Brearley 
Randall  v.  Holsenbuke 
Ranger  v.  Goodrich 
Rangier  v.  Hummel 
Ransone  v.  Christian 
Ratcliff  y.  Michael 
Ratlibun  v.  Emigh 
Rawlings  v.  Norbury 
Rayner  v.  Kinney 
Rea,  In  re  John 
Read's  Case 
Read  v.  Ambridge 
Reade  v.  Sweetzer 

V.  Woodroffe 
Rearick  v.  Wilcox 
Redman  v.  Pyne 
Redondo  v.  Chaytor 
Redston  v.  Eliot 
Redway  v.  Gray 
Reed  v.  Harper 


564 

193 

76,  559 

56 

64 

439 

67,  69,  80,  473 

346,  514 

271 

306 

94,  540 

169,  178,  274,  298 

118 

80,  458,  580 

111 

274 

443,  447 

127 

109 

39,40 

510 

302 

65 

3.56 

121 

122 

169 


77, 


Reeve  v.  Holgate 
Rehauser  v.  Schwarger 
Reid  V.  McLendon 
Reigiiald's  Case 
Remington  v.  Congdon 
Rendall  v.  Hayward 
Republic  of  Costa  Rica  v.  Erlanger 
Republic  of  Liberia  u.  Roye 
Respublica  v.  Davis 
V.  Dennie 
Restell  V.  Steward  479,  481 

Revis  V.  Smith  191 

R.  V.  Abingdon  (Lord)  154,  186,  2-36, 
268,  385, 

V.  Aickles 

V.  Alme 

V.  Almon 

V.  Amphlit 

V.  Annet 

V.  Archer 

V.  Aspinall 

V.  Atwood 

V.  Aunger 

V.  Baker 

V.  Baldwin 

V.  Barker 

V.  Barnard 

V.  Bate 

V.  Baxter 

V.  Bedford 

V.  Beere 

V.  Benfield 

V.  Bickerton 

V.  Birmingham  &  Gloucester 
Ry.  Co. 


161,  363,  364,  414,  429, 
152,  159, 


591, 

387,  540, 
534, 

417, 
152,  386,  417, 418,  533, 


V.  Bliss 
V.  Bolton 
V.  Boxall 
V.  Bradlaugh 
V.  Brewster 
V.  Brooke 
V.  Brown  (Dr.) 
V.  Budd 
V.  Bunts 
V.  Burdett 


6,  574, 
420, 

23,  116,  411, 


154, 386, 388,  308,  417, 
574,  575,  581, 
V.  Burford 
V.  Burks 

V.  Burn  441, 

V.  Canning 

V.  Canterbury,  Archbishop  of 
V.  Garden,  Sir  Robert         43,  390, 
V.  Carlile,  Mary         250,  351,  384, 
V.  Carlile,  Richard    384,  399,  401, 
V.  Casey 

V.  Castro  430, 

V.  Caudwell 
V.  Chipping 
V.  Christian 
V.  Clement 
V.  Clendon 
V.  Clerk 
V.  Cobbctt 
V.  Cockshaw 
V.  Coghlan 


Sodbury 

249,  258,  429,  431, 

130,  359,  387. 
10,  417, 


124 

637 
138 
124 

237 
559 
502 
431 
531 
412 
485 
193 
259, 
387 
536 
377 
437 
531 
399 
589 
586 
399 
593 
440 
592 
581 
593 
592 
104 
420 
580 
587 
592 

577 
417 
443 
578 
587 
421 
595 
421 
582 
589 
419. 
589 
441 
575 
593 
581 
403 
573 
399 
632 
578 
433 
588 
679 
580 
434 
398 
413 
418 
594 
379 


XXXVlll 


TABLE   OF   CASES. 


R 


Coll  en 

585 

R.  V.  Hughes 

350 

Collins            415, 416 

417,418,419 

V.  Hunt 

417,  579 

Cooper    25,  155,  333, 

361,  363,  3S6, 

V.  Hive 

399 

5bl 

V.  Ingram 

351 

Crcevey         186, 236 

250,  259,  268 

V.  James 

434 

( 'ripps 

573 

V.  Jeft'e 

428 

Critcliley 

376 

V.  Jenour 

377 

(ruse 

351 

V.  Jewell 

578 

Ciuhell 

10,  3b6 

V.  Johnson 

417,  578,  581 

Darby 

376,  441 

V.  JoUifJe 

381 

Davison 

42^) 

V.  Jones 

431,  576 

Dean  of  St.  Asaph  10 

,  377,  585,  58G 

r.  Joule 

579 

De  Berenger 

378 

V.  Kearsley 

414 

D'Eon 

383 

V.  Kinnersley 

381 

Dewliurst 

579 

V.  Knell                       359 

387,  418,  617 

Dodd 

161,  363 

V.  Kniglit 

242 

Dover 

159 

V.  Labouchere 

392,  583 

Drurv 

587 

V.  l>anibert                     27,  99,  414,  582 

Duffy 

390,  583 

V.  Lanibri's  Case 

392,  583 

Dugdale 

405 

V.  Langley 

441,  445 

Eaton 

398 

V.  Larkin 

586,  587 

Edgar 

98 

V.  Larrieu 

380 

Enes 

226 

V.  Latimer 

590,  595 

Evans 

424,  4o5 

V.  Lawrence 

417 

Eve 

593,  594 

V.  Lawson 

381 

Eyre 

584 

V.  Leafe 

441 

Farr 

72,  4-10 

V.  Ledger 

50,  399 

Faulkner 

429,  437 

V.  Lee 

•    244,444 

Fisher 

255 

V.  Lefroy 

441,  442, 

Fk-et 

255 

446 

Foulkes 

578 

V.  Liverpool  (Mayor  of) 

591 

Fowler 

588 

V.  Llanfaethly 

536 

Fraiiceys 

531,  591 

V.  Lofield 

253,  255 

Francis 

272 

V.  Lovett    154, 155,  333, 

386,415,417, 

Francklin 

414,  417 

533 

Garret 

116 

V.  Lowe 

356 

Gathercole 

126,  376,  377 

V.  Mann 

585 

Gird  wood 

581,  583 

V.  Marsden 

675 

GoMsmith 

586 

V.  Marshall 

382,  593 

Goldstein 

470,  574 

V.  Martin 

582 

Gordon 

530 

V.  Matthews 

104 

Gordon,  Lord  Geo. 

383,  427 

V.  Mayo 

440 

Granfield 

441 

V.  Mein 

592 

Grant 

584 

V.  Moore 

326 

Gray 

381 

V.  Morton 

579 

Gregory 

381 

V.  Moxon 

399 

Griffin 

377 

V.  Newhouse 

590 

Gutch 

161,  364,  386 

V.  Newman        171,  174, 

549,  584,  588, 

Hall 

399,  535 

649 

Halpin 

589 

V.  Nottingham  Journal 

380 

Harrison 

420,  421 

V.  Nun 

441 

Hart 

232,  428 

V.  Nutt  (Eliz.) 

161,  368,  413 

Harvey 

385,414,584 

V.  Nutt  (Richard) 

421 

Haswell 

534,  592 

V.  Oastler 

579 

Head 

24 

V.  Odgers 

577 

Hetlierington 

390,  588 

V.  Onslow 

430,  448 

Hickiin              6,  250, 

399,  404,  407 

V.  Orme 

377 

Higgins 

378 

V.  Osborn 

377,  381 

Hobliouse 

424 

V.  Owen 

417,  423 

Hostgan 

577 

t'.  Paine,  Samuel 

6,  154,  387 

Hoibrook       159,  363, 

364,  365,  385. 

V.  Paine,  Tliomas 

421 

583 

V.  Palmer 

579 

Holland 

577 

V.  Paty 

424,  435 

Holt                        884, 

582,  584,  587 

V.  Peachara 

411 

Home             104,  417, 

575,  595,  651 

V.  Peltier 

857,  383 

TABLE   OF   CASES. 


XXXIX 


R.  r 


Penny 
V.  Pliilipp3 
V.  Pigott 
V.  Pluiner 
V.  Pocock 
V.  Pollard 
V.  Pooley 
V.  Rainer 
V.  Pea 
V.  Redman 
V.  Reeves 
V.  Revel 
V.  Rogers 
V.  Ro.-enberg 
V.  Salisbury 
V.  Saunders 
V.  Seton 
V.  Seym  ore 
V.  Shebbeare 
V.  Shipley  (Dean  of 

V.  Sidney 

V.  Skinner 

V.  Skip  worth 

V.  Slaney 

V.  Smithson 

V.  Southerton 

V.  Spencer 

V.  Spragg 

V.  Stanger  • 

V.  Stapleton 

V.  Steel 

V.  Steward 

V.  Stoekdale 

V.  Sullivan     27,  45, 

V.  Sutton 

V.  Taylor 

V.  Templar 

V.  Tliomas 

V.  Topham  376, 

V.  Townsend 

V.  Truelove 

V.  Truscott 

V.  Tucker 

V.  Tutchin  104, 

V.  Unwin 

V.  Veley 

V.  Vint 

V.  Waddington 

V.  Walter 

V.  Ward 

V.  Watson  97, 

V.  Watson,  James 

V.  Webster 

V.  Wegener 

V.  Wcltje 

V.  Whalley 

V.  White 

V.  Whitehouse 

V.  Wiatt 

V.  Willett 

V.  Wilkes  399, 

V.  Williams   6,  381, 


441 

877 

421,  584 

581 

441 

350 

398 

422 

443,  417 

379 

27,  416,  420,  423 

440,  441 

428,  441,  445 

23,  24 

192 

23 

580 

179 

377,  413 

St.  Asapli)       10, 

377,  585,  58(i 

386,411 

189,  191,  192 

428,  4.30,  433 

634,  580,  581 

594 

379 

579 

588 

532,  591,  592 

350 

595 

534 

423 

415,  421,  427,  585 

582 

397,  399,  577 

579 

578 

384,  385,  576,  586 

390 

406 

392,  534 

582 

377,  416,  417,  575 

580 
229 
383 

378,  587,  398,  401 
159,  364,  386 

379 

381,  428,  535,  581 

535 

592 

383,  575,  580 

440 

4.30,  448 

45,  381,  427 

588 

161,  386 

591 

404,  414,  574,  577, 

595 

397,399,401,411, 

414,  589,  592 


R.  V.  Williams  (Sir  Wm.) 

187 

V.  WiLson 

123,  580,  689 

V.  Winterbothara 

421 

V.  Withers 

585,  589 

V.  Woodfall 

414,  .585 

V.  Woolmer 

592 

V.  Woolston 

397,  398,  39y 

V.  World,  The 

594 

V.  Wrennum 

428 

V.  Wright 

187, 

243,  259,  382 

V.  Wrightson 

440 

V.  Yates 

379,  575 

Reynolds  v.  Harris 

341 

V.  Ross 

57 

Rhinehardt  v.  Potts 

56 

Rhodes  v.  Bryant 

465 

V.  Liverpool  Investment  Co.   569 

Rice  V.  Coolidge 

183, 

188,  190,  191 

I'.  Pidgeon 

80 

V.  Withers 

531 

Richards  v.  Morgan 

518 

V.  Richards 

165,  231,  233,  306 

Richardson  v.  Allen 

123 

V.  Hopkins 

151 

V.  Roberts 

84,  169 

V.  Willis 

590 

Richmond  (Duke  of)  v 

Costelow        136 

Picket  V.  Stanley 

84 

Riddell  v.  Thayer 

84,  lOe,  112 

Riding  v.  Smith     78,  84,  86 

,  91,  314,  315, 

329, 

330,  349,  359 

Ridley  v.  Perry 

169 

Riggs  V.  Denniston 

74 

Riley  v.  Byrne 

550 

V.  Lewis 

85 

Risk  Allah  Bey  v.  Johnstone  300,  547, 560 

V.   Whitehurst     45,  252, 

297 

Roach  V.  Garvan 

123, 

130,  429,  454 

Robbins  v.  Fletcher 

271,  537 

V.  Treadway 

412,  426 

Roberts  v.  Brown 

177,  255,  528 

V.  Camden 

56,  57,  97,  125 

V.  Evans 

346 

V.  Herbert 

59,85 

V.  Lovell 

151 

V.  Roberts 

86,  312.  325 

Robertson  v.  Lea 

123 

V.  M'Dougall 

237,  281 

V.  Wylde 

270,  297 

Roblnett  v.  Ruby 

220 

Robinson  v.  Drummond 

93 

V.  Jermyn 

25 

V.  Jones  151,  240,  283,  284,  532 
V.  Marchant  8,  78,  324,  365,  367 
Robinson's  Case  399 

Robshaw  v.  Smith  204,  205,  207,  615 

Rockwell  I'.  Brown  271 

Rodebaugh  v.  Mollingsworth  100 

Rodgers  v.  Kline  6,  75,  76,  93,  94,  271,  305 
V.  Rodgers  55,  84,  122 

Rodriguez  r.  Tadmire  305 

Rogers  v.  Clifton  (Sir  Gervas)    203.  232, 

268,  275 
V.  Gravat  59 


xl 


TABLE   OF   CASES. 


Rogers  v.  Henry  291,  292,  313 

Kolin  V.  Steward  8 

Rollins  V.  Hinks  13,  144 

Root  V.  King  40,  236,  291,  305 

t'.  Lowndes  271 

Ross  V.  Lawrence  470 

V.  Rouse  123 

Rotherham  v.  Priest  495 

Roupell  V.  Parsons  553 

Rourke  v.  White  Moss  Colliery  Co.    564 

Routli  V.  Webster  15 

Rowcliffe  V.  Edmonds  56 

Rowe  V.  Roach  472 

Ruan  V.  Perry  298 

Rucklev  V.  Kiernan  281 

Rue  V.  Mitchell  123 

Ruel  V.  Tatnell  81,  102,  113,  540 

Runkle  v.  Meyers  164 

Runtz  V.  Sheffield  499 

Ruohs  V.  Backer  84,  183,  187 

Rush  V.  Cavenaugh  74,  75,  80 

Russell  V.  Anthony  69,  169 

V.  Corne  348 

V.  Kelly  94,  540 

(Sir  William)  v.  Ligon  56 

V.  Webster  33,  105,  370 

V.  Wilson  .  57 

Rustell  I'.  Macquister  273 

Rutherford  v.  Evans  23,  69,  329,  330,  471, 

531 

V.  Wilkie  342 

Rutter  V.  Chapman  651 

Ryalls  V.  Leader  248 


s. 


St.  Nazaire  Co.,  In  re  337 

Salmon  v.  Isaac  194,  251,  269 

Saltash,  Corporation  of  v.  Goodman   563 

Salter  v.  Brown  58,  85 

Sampson  v.  Mackay  334 

Sanderson  v.  Caldwell  64,  71,  93,  100 

Sandford  v.  Bennett  355 

Sanford  v.  Gaddis  123,  536,  537 

Sands  v.  Cliild  359 

Saner  v.  Bilton  342 

Sans  V.  Joerris  162 

Saull  ('.  Browne  510 

Saunders  v.  Bate  470,  537 

V.  Baxter  187,  271 

V.  Edwards  106,  456 

V.  Jones  506,  512 

V.  Johnson  291 

V.  Mills  159,  176,  253,  303 

Savage  v.  Robery  61,  80 

Savile  v.  Jardine  61,  80,  82,  295 

Saville  v.  Sweeny  *                     349 

Sawj^er  v.  Erfert  305 

Saxby  v.  Easterbrook  13,  16.  454 

Saye  &  Scale  (Viscount)  i'.  Stephens  135, 

455 

Sayer  v.  Begg  232 

Sayles  v.  Wooden  480 


Sayre  v.  Jewett  540 

Scarll  V.  Dixon      211,  223,  224,  239,  271, 

287 
Schmisseur  v.  Kreilicli  6,  84,  271,  292,  537 
Schoonover  v.  Rowe  271 

Schriniper  t-.  Heilman  271 

Schurick  v.  KoUman  84,  100 

Scot  V.  Hilliar,  '  55,  123 

Scott  V.  McKinnish  305 

V.  Mackintosh  536 

V.  Mortsinger  271 

V.  Peebles  162 

r.  Royal  Wax  Candle  Co.  461 

V.  Shepherd  329 

V.  Stansfield  189,  497 

Scrippsr. -Foster  6,40,292 

V.  Reilly  6,  45,  157,  271,  292,  302, 
313 
Seaman  v.  Bigg  77 

V.  Netherclift  188,  189,  191,  192, 
484,  534 
Seaton  v.  Cordray  57 

Secor  V.  Harris  75,  76 

Seeley  v.  Fisher  13 

Seely  r.  Blair  40 

Self  V.  Gardner  '  169 

Senior  v.  Medland  229,  236,  279,  282 

Senter  v.  Carr  305 

Servatius  v.  Pichel  242 

Seven  Bishops'  Case  534,  581 

Severance  v.  Hilton  271 

Sewall  V.  Catlin  78 

Sewers,  Commissioners  of,  v.  Glasse  506 
Seymour  v.  Butterworth  43,  44 

V.  Coulson  569 

Shackell  v.  Rosier  359,  374 

Shafer  v.  Ahalt  84,  313 

Shank  v.  Case  274 

Sharpe  v.  Stevenson  169 

V.  Wilhite  123 

Shattuck  V.  Allen  94 

Shaul  V.  Brown  9 

Shaw  V.  Hope  562 

V.  Shaw  430 

1-.  Thompson  56 

Sheahan  v.  Ahearne  90,  474 

Siieckell  v.  Jackson  271 

Sheelian  v.  Collins  305 

Sheekey  v.  Cokiey  84,  298 

Sheffill  V.  Van  Deusen  306 

Shelfer  v.  Gooding  183 

Shelton  v.  Nance  22,  237 

Shepheard  v.  Whitaker       7,  31,  153,  3C.2 
Sheriff  of  Surrey,  In  re  431,  433 

Slieward  v.  Earl  of  Lonsdale        508,  533 
Shields  v.  Cunningham  84 

Shinloub  v.  Ammerman  123 

Shipley  i'.  Todhunter  154,  235,  281 

Shipp  V.  McCraw  54 

Shirley  v.  Keathy  274 

Shrover  v.  Miller  93,  123,  177,  298 

SluirtlefE  v.  Stevens        182,  198,  219,  241 
Sibley-r.  Tomlins  67,  81,  108 

Sibtiiorpe's  Case  72 

Siddons  v.  Lawrence  336 


TABLE   OF   CASES. 


xli 


Sidnarn  v.  Mayo  125 
Sidney's  (Algernon)  Case  386,  411 
Silver  Lead  Ore  Co.,  In  re  505 
Simmonds  v.  Dunne  200,  242,  279,  484 
Simmons  v.  Holster  151 
V.  Sweete  441 
Simpson  v.  Dowus  241 
V.  Fogo  439 
V.  Robinson  178,  275,  297,  542 
V.  Wiley  531 
Sims  V.  Prosser  464 
Singer  Manuf.  Co.  v.  Domestic  Sew- 
ing Machine  Co.  13 
Sivier  v.  Harris  507 
Skinner  v.  Grant  169 
V.  Kitch  149 
V.  Powers  1H9 
V.  Slioppee  339 
Skipwortli's  Case  428,  430,  433 
Skull  V.  Raymond  94 
Slade  V.  Tucker  518 
Slater  v.  Franks  111 
Sloan  V.  Gilbert  123,  178 
Slocomb  V.  Kuykendall  536 
Slocomb's  Case,  Cro.  119 
Sloman  v.  Governor  of  New  Zealand  460 
Siowman  v.  Button  106 
Smagley  r.  Stark  540 
Small  V.  Clewley  123 
Smart  r.  Blanchard  94,  169,  271,  540 
Smawley  v.  Stark  22,  94 
Smith,  Ex  parte,  In  re  Bishop               432 
V.  Andrews  75 
V.  Ashley  157,  159,  387,  617 
V.  Berg  515 
V.  Buckecker  169 
V.  Coe  100 
V.  Dobbin  462 
j;.  Flynt  58 
V.  Gaffard  55 
V.  Harrison  297,  497 
V.  Higgins  220 
V.  Hodgeskins  221,  267 
V.  Howard  191 
V.  Kerr  220 
V.  Knowelden  471,  537 
;;.  Lakeman  430 
V.  Mathews  80,  168,  231.  233,  276 
V.  Minor  84 
V.  Parker  171 
V.  Richardson  499,  549 
V.  Scott  248,  304 
V.  Smith  [  54,  84,  177 
V.  Spooner  141 
V.  State  6,  55 
V.  Stewart  67,  98 
V.  Taylor  630 
V.  Thomas  291,  484 
V.  Ward  109 
V.  Wood  168,  232 
V.  Youmans  237 
Snag  r.  Gee  62 
V.  Gray  74 
Sneesby  ?•.  Lane.  &  York.  Ry.  Co.      327 
Snell  V.  Snow  84,  94,  112,  540 


Snell  V.  Webling 
Snow  V.  Judson 
V.  Witcher 
Snowdon  v.  Smith 
Snyder  v.  Andrews 

V.  Fulton 
Soane  v.  Knight 


124 

138 

169 

305 

94,  l.J2 

6,  22,  271,  292 

49 


Solomon  v.  Lawson        31,  119,  127,  132, 

470,  471 
Solomons  v.  Medex  324,  367 

Somers  v.  Holt  356 

V.  House  55,  96 

Somerville  v.  Hawkins  202,226,270,544 
Sonneborn  i'.  Bernstein  271 

Southam  v.  Allen  79,  205,  206 

Southee  v.  Denny  76 

Soutiiey  V.  Sherwood  14,  674 

Soutlivvark  &  Vanxhall  Water  Co.  v. 

Quick  518 

Soutliwick  V.  Stevens  23,  98,  531 

Spackman  v.  Gibney  484,  535,  607 

Spaids  V.  Barrett  183 

Spall  V.  Massey  8 

Sparling  v.  Haddon  531 

Sparrow  v.  Maynard  54 

Speaker  of  the  Legislative  Assem- 
bly of  Victoria  v.  Glass  425 
Speaker  v.  McKenzie  55 
Speck  V.  Phillips  304 
Spencer  v.  Amerton  237 
V.  McMasters  271,491 
Spiering  v.  Andrae  64,  65,  71 
Spill  V.  Maule  235,  271,  280,  282 
Spiller  V.  Paris  Skating  Rink  Co.  527 
Spooner  v.  Keeler  123,  305,  480 
Spriglitly  V.  Dunch  464 
Springhead  Spinning  Co.  i'.  Riley  13, 
14,  15,  149,  358 
Spruill  V.  Cooper  178 
Spurr  V.  Hall  492 
Squire  v.  Johns  126 
Stace  V.  Griffith  212,  536 
Stacy  V.  Portland  Pub.  Co.    94,  162,  169, 

292 

StafTord  v.  Green  123,  486 

Stainbank  v.  Beckett  481 

Stainton  v.  Jones  59,  85 

Stallings  v.  Newman  121,  208 

Stamp  V.  White  62,  96 

Staniiard  Discount  Co.  v.  La  Grange  502 

Stanhope  v.  Blith  60,  61,  82,  123 

Stanley  v.  Bos  well  71 

V.  Webb  99,  243 

Stannus  v.  Finlay  483,  550 

Stanton  v.  Smith  70,  78 

Staples  V.  Young  342 

Stapleton  v.  Frier  66,  121 

Stark  V.  Chetwood  138 

State  V.  Allen  389 

V.  Atchison  367 

V.  Avery  873,  383 

V.  Boogher  367 

V.  Brown  404 

V.  Brownlow  574 

V.  Burnham  169,  373,  389 


xlii 


TABLE   OF   CASES. 


State  V.  Butman 

V.  Cliandler 

V.  Farley 

V.  Gould 

V.  Henderson 

V.  Jeiiiulell 

V.  Lonsdale 

r.  Kiggs 

V.  White 
Stearns  v.  Cox 
Stebbing  v.  Warner 
Steele  v.  Brammn 
V.  I'liillips 
V.  Soutliwick 
Stees  V.  Kenible 
Stein  V.  Tabor 
Steinman  v.  Wc Williams 
Steiinel  v.  Hogg 
Stern  v.  Katz 

V.  Sevastopulo 
Sternau  v.  Marx 
Sterrj'  v.  Foreman 
Steuart  v.  Gladstone 
Stevens  v.  Handley 
V.  Hartwell 
V.  Sampson 


162 

394 

22 

94 

373,  574 

5:il 

204 

271 

373 

271 

61, 122 

6,  250,  399,  407,  408 

1G9 


Steward  v.  Young 

Stewart  v.  Howe 
V.  Wilson 

Stielier  v.  Wensie 

Stiles  V.  Conistock 
V.  Nokes 

Stilwell  r.  Barter 

Stirling  v.  l)u  Barry 

Stitzell  ('.  Reynolds 

Stober  r.  Green 

Stockdale  c.  Hansard   187,  423,  424,  425, 

435 
V.  Onwhyn  374 

V.  Tarte  170,  253 

Stocken  v.  Collin  581 

Stockley  v.  Clement  127,  22(5 

Stockton  Iron  Furnace  Co.,  In  re        563 


22 

57,  530 

509 

178 

586 

94,  122 

503 

94 

310,  322 

527 

302 

162,  828 

186,  194,  209,  257, 

269,  276 

142,  145,  226 

57,  122 

93,  100 

84 

169 

24,  46,  176,  255 

66 

499 

84,  100,  122,  271 

80 


Stokes  V.  Arey 

V.  Grant 
Stone  V.  Clark 
V.  Cooper 
V.  Smalcombe 
V.  Varney 

V.  Yeovil  (Mayor  of) 
Stoner  v.  Audeley 
Stooke  V.  Taylor 
Storey  v.  Cliallands 
V.  Early 
V.  People 
V.  Wallace 

Stout  V.  Wood 
Stow  V.  Converse 
Stowell  r.  Beagle 
Strader  v.  Snyder 
Strauss  v.  Francis 

V.  Meyer 
Street  v.  Bushnell 


57 

477,  496 

122 

71,  112 

]22 

177,  305 

317 

124 

842 

206,208,209,311 

6,  177,  305 

426 

157,  191,  243,  271. 

291,  299 

54 

22 

271,  305,  485 

100,  155,  305 

48,  545,  550 

183 

536 


480, 
32,  81, 

204, 
177, 

431, 


178, 


Street  v.  Licensed  Victuallers'  Soci- 
ety 99, 
Strode  v.  Holmes 

Stuart  V.  Lovell  49,  99,  273, 

Stubbs  V.  Marsh 
Stuckiey  v.  Bullhead 
Studdard  v.  Trucks 
Sturla  V.  Freccia 
Siurton  (Lord)  v.  Chaffin 
Suegos'  Case 
Sugg  V.  Silber 
Stimnier  v.  Chipman 
Summers  v.  City  Bank 
Sumner  v.  Utiey 
Sunderlin  v.  Bradstreet 
Sunman  v.  Brewin 
Surman  v.  Shelleto 
Surrey,  Re  the  Sheriff  of 
Sutton  V.  Johnstone 
V.  Plumridge 
Swails  V.  Butcher 
Swan  V.  Tappan 
Swann  v.  Rary 
V.  Vines 
Swansea  (Mayor  of)  v.  Quirke 
Sweeney  v.  Baker  40,  177,  236, 

Sweetapi)le  v.  Jesse 
Swift  V.  Dickerman  177,  271, 

Swindle  r.  State 
Swinney  v.  Nave 

Swithin  V.  Vincent  351, 

Sydenham  v.  ]\Ian 
Sy'kes  v.  Sykes 

Symmons  v.  Blake  99,  273, 

Symonds  v.  Carter  84, 


T. 


TaaflTe  v.  Downes  189 

Tabart  v.  Tipper  37,  536 

Taber  v.  Hutson  292 

Tait  r.  Culbertson  372 

Talbot  V.  Case  62 

Talbutt  V.  Clark  159,  303 

Talmadge  v.  Baker  169,  305 

Tappan  v.  Wilson  100 

Tardrevv  v.  Brook  550 

Tarleton  v.  McGawley  31,  149,  322 

Tarpley  v.  Blabey  155,  276,  307,  361,  533 

Tnsburgh  v.  Day  138 

Tate  V.  Humphrey  277 

Taylor  v.  Batten  521 

i;.  Carr  71 

V.  Cass  337 

V.  Church  204,  212 

V.  Hall  63 

r.  Hawkins       203,232,269,281, 

285 

V.  How  71 

V.  Jones  ^     499 

V.  Kneeland  271,  537 

V.  Moran  271,  536 

V.  Neri  322 

V.  Perkins  63,  126 


252 

71 
296 
355 

70 

1 

467 

125 

76 
523 
485 
319 

75 
212 
305 

80 
433 
195 
212 
274 
138 
169 
535 
502 
271 
114 
313 
383 
177 
371 
537 
566 
296 
271 


TABLE   OF  CASES. 


xliii 


Taylor  ?'.  Perr 
V.  Short 
V.  Starkey 
V.  State 
Taylor's  Case 
Teacy  v.  McKenna 
Teague  v.  Williams 
Tempest  v.  Chambers 
Tenney  ('.  Clement 
Terry  v.  Hooper 
Terwilliger  c.  Wands 

Tetley  v.  Easton 
Theoilor  Korner,  The 
Tlieyer  v.  Eastwick 
Tliieman  v.  Mathews 
Thomas  v.  Cliurton 
V.  Croswell 
V.  Fischer 
V.  Jackson 
V.  Rumsey 
V.  Williams 
Thompson  v.  Bernard 
V.  Nye 
V.  Shackell 
V.  Twenge 
Thorley  v.  Lord  Kerry 


63,66 

55 

75 

574 

563 

23,  94 

536 

57,  125 

121 

80 

20,  84,  313,  321, 

328,  332 

509 

519 

59,85 

55 

189 

22,  254,  271,  412 

271,  306,  537 

80 

371,  458 

16,  334,  454 

109 

305 

49 

78 

5,22 


Tliorley's  Cattle  Food  Co.  v.  Mas- 


sam 
Thorn  v.  Blanchard 

V.  Moser 
Thornton  v.  Stephen 
Thorpe  v.  Macaulay 
Throgmorton  v.  Davis 
Thurman  v.  Wild 
Tibbott  ".  Haynes 
Tibbs  V.  Browne 

V.  Smith 
Tichborne  v.  Mostyn 

V.  Tichborne 
Tidman  v.  Ainslie 
Tighe  V.  Cooper 
V.  Wicks 
Tildesley  v.  Harper 
Tilk  (;.  Parsons 
Tillman  v.  Willis 
Tillotson  V.  Cheetham 
Tillson  V.  llobbins 
Titus  V.  Sumner 
Todd  V.  Hastings 

V.  Hawkins 

V.  Rough 
Tolleson  c.  Posey 
Tomlinson  v.  Brittlebank 
Tompkins  v.  Woisse 

V.  Wisener 
Toogood  V.  Spyrin 


15,  16,  148 

193,  213 

220 

545 

516,  527 

271 

489 

56 

347 

122 

429 

429 

165,  174 

173,  487 

66,  73 

499 

314 

55,  94,  122 

298 

22 

94,  271,  331 

80 

212,  235,  268,  484 

54 

298 

106 

94 

94,  540 

151,217,  226,  241, 

242,  288 

402 

298 

Hughes  (Dr.)     73, 


Tottentliam  v.  Barry 
Townshend  v.  Groves 
(Lord) 

96,  126,  136,  317,  320,  558 
Tozer  v.  Mashford  57,  125 

Trahue  v.  Mays  299 

Traill  v.  Denham  99 


Treat  v.  Browning  162,  164,  536 

Trenton  Insurance  Co.  v.  Perrine        368 
Tripp  V.  Thomas  293,  464,  543 

Trotman  i\  Dunn  191 

Trowell  v.  Shenton  562 

Trumbull  v.  Gibbons  152,  153 

Tryon  v.  Evening  News  Asso.  22 

Tuam  (Archbishop  of)  v.  Robeson        28 


Tucker  v.  Call 

Tu(;ker's  Case 

TuU  V.  David 

Tunicliffe  ;-•.  IMoss 

Tupiing  V.  Ward 

Turnbull  v.  Bird 

Turner,  Ex  parte 

V.  Heyland 
V.  Meryweather 
V.  Ogden 
V.  Stirling 
V.  Sullivan 

Turpin  v.  Remy 

Tuson  V.  Evans 


829, 


178,  536 

582 

169 

30 

504 

44 

4.30 

337,  338,  570 

103,  128,  529 

54,  57,  59,  85 

139 

251 

9 

227,  281 


Tutchin's  Case       104,  377,  416,  417,  575 

Tutty  V.  Alewin  08,  76 

Twycross  v.  Grant  355,  522 

Tyne  Alkali  Co.  v.  Lawson  336 

u. 

Underhill  v.  Taylor  306 

V.  Welton  84 

Underwood  v.  Parks  177,  305 

Union  Bank  of  London  v.  Manby        516 

UpdegrafE  v.  Commonwealth  394 

Upton  I'.  Pinfold  118 

Usill  I'.  Brearley  244,  248 

V.  Clarke  244,  248 

V.  Hales  244,  248 


V. 


Van  Ankin  v.  Westfall  54 

Vandenburg  v.  Truax  322 

Vanderlip  v.  Roe  84 

Vandersee  v.  IMcGregor  213,  270 

Van  Epps  v.  Jones  64 

Van  Ness  v.  Hamilton  169 

Van  Sandau,  Ex  parte  438 

V.  Turner  438 

Van  Tassel  v.  Capron  70 

Van  Vactor  v.  Walkup  94,  98 

Van  Vochtcn  v.  Hopkins  94,  540 

Van  Wvck  v.  Aspinwall  198,  213 

Vauiihan  v.  Ellis  140 

Vaux's  Case  587 

Vernon  v.  Vernon  429,  434 

Vessey  v.  Pike  304 

Vicars  v.  Wilcox  322,  326 
V.  Worth                   69,  84,  85,  131 
Victoria  Assembly  (Speaker  of)  i;. 

Glass  425 

Vidal  V.  Girard  394 

Viele  V.  Gray  267 

Villeboisnet  v.  Tobin  604 


xliv 


TABLE  OF   CASES. 


Villers  i*.  Monsley 
Vine,  Ejc  parte 
Vines  i;.  Serell 
Viney,  Ex  parte 
Vivian  v.  Wiilet 


w. 

Wachter  v.  Quenzer 
Wadsworth  i'.  Bentley 
WagstaHl-  v.  Anderson 
AVaitliinan  v.  Weaver 
Wakt'lin  «.  Morris 
AVakiey  v.  Cooke 


22,  63 

"Watson,  In  re 

354 

V.  Gierke 

298 

V.  McCann 

663 

V.  McCarthy 

78,  125 

V.  Vanderlash 

Watt  V.  Ligertwood 

Walters  v.  Smoot 

182 
456 
519 
305 
295 
30,  171,  485 
V.  Healey       22,  29,  69,  126,  130 
i".  Johnson  307 

Walcot  V.  AValker  374 

Waklegrave  (Sir  William)  v.  Agas  56, 131 
Wahkn  v.  Mitchell  58,  70 

AValker  v.  Brogden  47,  529 

Wall  V.  Iloskins  54 

Wallace,  lie  436 

V.  Carroll  204 

V.  Dixon  636,  537 

v.  Young  114 

Wallingford  u.  jMutual  Society  522 

Wall  is  V.  Hepburn  522 

Walls  or  Watts  v.  Rymes  60 

Walsh  i:  State  574 

Walsham  v.  Steinton  518 

Walter  v.  Beaver  558 

I'.  Brogden  28 

Walton  V.  Singleton  84 

Ward  V.  Clark  93,  94,  123 

V.  Colyhan  55,  100,  122 

V.  Dick  271 

r.  Reynolds  97,  126 

V.  S infield  546 

V.  Smith  154,  365,  533 

V.  State  305 

V.  Weeks  61,  82, 164, 167,  321, 320, 
330 
Warden  v.  Bailey  195 

Ware,  lit  re,  Er  parte  Drake  456 

V.  Curtledge  151,  298 

Warman  v.  Hine  27,  29,  170,  276 

Warmouth  v.  Cramer  110,  537 

AVarne  v.  Chadwell  273 

Warner  i'.  Payne  191 

Warr  v.  Jolly  168,  232,  333 

Warren  v.  Norman  66 

V.  Warren  154,  199,  242,  279,  533 
Warton  v.  Gearing  65,  75 

Warwick  v.  Foulkes  178,  274 

Wason,  Ex  parte  186 

V.  Walter  34,  40, 43, 186,  236,  243, 
246,  258,  259,  618 
Waterer  i'.  Freeman  142 

Waterfield  v.  Chichester  (Bishop  of)  257 
Waters  v.  Jones  114 

V.  Moore  169,  305 

j;.  Waters  460 

Watkin  v.  Hall      101,  162,  164,  165.  174, 

175,  177 


430 
85 

666 
62 

76,77 

433 

169 

Watts  V.  Fraser      152,  159,  307,  362,  532 

V.  Morgan  151 

V.  Kynies  122 

Waugh  V.  Waugh  84,  93,  121 

Weatherston  v.  Hawkins  232 

V.  Hendrick  267 

Weaver  v.  Lloyd  169, 170,  545 

Web  V.  Poor  62 

Webb  V.  Cecil  371 

V.  East  518,  519 

V.  England  477 

V.  Mansel  563 

Webster  v.  Whewall  516,  520 

Weierbach  v.  Trone  61 

Weil  V.  Schmidt  93,  100,  114 

Weir  V.  Hoss  154 

Weiss  V.  Whittemore  31,  320 

Weilesley's  Case  431,  448 

Welply  V.  Buhl  566 

Welsh  Steam  Colliery  Co.  v.  Gaskell  520 

Wenman  v.  Ash  152,  264 

Western   Counties    Manure   Co.    v. 

Lawes  Chemical  Manure  Co.    33,  91, 

138,  145,  148,  476,  634 

Westman  v.  Aktiebolaget,  &c.  Co.       357 

West  of  England  and  South  Wales 

Bank  v.  Nicholls  510 

Weston  V.  Beeman  361 

V.  Dobniet  193 

Wetherhead  v.  Armitage  67,  77,  84 

Whalley's  Case  430,  448 

Wharton  v.  Brook  77,  84 

Wheatcroft  v.  Mousley  529 

Wheatley  v.  Wallis  122 

Wheeler  v.  Haynes  104 

V.  Kobb  536 

Whistler  v.  Hancock  522 

V.  lluskin  38,  39,  40,  49 

Whitaker  v.  Carter  169,  237 

White  V.  Carroll  64,  65,  71,  183,  191 

V.  Harwood  352 

V.  Nichols  22,  183,  267 

V.  Say  ward  94,  540 

V.  Tyrrell  487 

Whiteley  v.  Adams  198,  219,  466 

Whitesell  v.  Lennon  123 

Whitfield  V.  Powel  63 

V.  S.  E.  Ey.  Co.   151,  240,  283, 

369 

Whitney  v.  Allen  191 

Whittaker  v.  Freeman  485 

Whittemore  v.  Weiss  6,  98,  169,  271,  306 

Whittington  v.  Gladwin  78,  79 

Wicry.  Allen  177,305 

Wilborn  V.  Odell  537 

Wilby  V.  Elston  85 

V.  lleiiMian  523 

Wilcox  V.  Edwards  57 


TABLE   OF   OASES. 


xlv 


Wiley  V.  Campbell 

57 

Wilk's  Case 

108 

Williams  v.  Beaumont 

32 

368,  369 

V.  Bryant 

53(3 

V.  Callender 

305 

V.  Cavvley 

94 

V.  Gardiner 

103,  125 

V.  Gordon 

267 

V.  Green  wade 

84, 177 

V.  Harrison 

271,  5H7 

V.  Hill 

84,  312 

V.  Holdridge 

02 

V.  Johns 

431 

V.  Karnes 

22,  54 

V.  Miner 

211 

V.  Stott 

55,62 

Williams's  Case 

411 

Williamson  v.  Freer      151, 

240, 

283,  285, 

Willis  V.  Maclachlan  447 

Willover  v.  Hill  271,  305 

Wilson,  In  re,  Ex  parte  Vine  354 

V.  Barnett  84,  178,  298 

V.  Cliurch  501,  504 

V.  Collins  240,  283,  286 

V.  Fitch  22,  40,  169,  177,  805 

V.  Goit  21,  84,  313,  325,  328,  350 
V.  Harding  123 

v.  Nations  170,274,537 

V.  Noonan  G,  40, 236, 27 1,  305, 313 
V.  Beed  43,  295,  372 

V.  Bobinson  178,  212,  274 

V.  Tatum  57 

Wilson's  (Carus)  Case  429,  433, 435,  439, 

443, 444 

Wilton  V.  Brignell 

Windsor  v.  Oliver 

Wing  V.  Wing 

Wingard  v.  Cox 

Winter  v.  Sumvalt 

Wiseman  v.  Wiseman 

Wolbreclit  r.  Baumgarten 

Wolf  V.  Rodifer 

Wolverhampton  New  Water  Works 
Co.  V.  Hawksford 

Wonderly  v.  Nokes 

Wood  f.  Adam 
V.  Brown 
V.  Jones 
V.  Southwick 


507,515 

78 

55,  122 

479 

61 

130 

123 

537 


515 
178 
470 
470 
505 
66 


Woodard  v.  Dowsing 

Wood  burn  v.  Miller 

Woodbury  v.  Thompson 

Woodfall's  Case 

Woodgate  v.  Ridout    29,  45,  46, 

Woodruff  V.  Richardson 

V.  WeoUey 
Woods  V.  Pangburn 

V.  Woods 
Woodward  v.  Lander  217, 

Woolmer  v.  Latimer 
Woolnoth  V.  Meadows       50,  97, 
Wootton  V.  Wootton 
Wormouth  v.  Cramer 
Worth  V.  Butler 
Worthington  v.  Houghton 


Wren  v.  Weild 
Wrennum's  Case 
Wright  V.  Clements 
V.  Goodlake 
V.  Moorhouse 
V.  Woodgate 
Wyatt  V.  Buell 
V.  Gore 


Y. 


138, 


211, 


28,  283 

22,  531 

84 

588 

253,  539 

169 

71 

271,  371 

403 

223,  281 

305 

124,  163 

338 

110,  537 

84 

2? 

144,  496 

428 

470 

507 

71 

270,  535 

191 

538,  549 


Yarborough  v.  Bank  of  England 
Yarmouth  (Mayor  of).  Ex  parte 
Yates  V.  Lansing 
Yearly  v.  Ashley 
Yeates  v.  Reed 
Yetts  V.  Foster 
York  V.  Johnson 
V.  Pease 
V.  Rose 
Young  V.  Gilbert 

V.  Hickens 

V.  Macrae 

V.  Miller 
Yrisarri  v.  Clement 
Yundt  V.  Yundt 


368 
440 
189 

57 
354 
555 
100,  203,  207,  211 
237 
191 

94 

31 
33,  145,  146,  147,  148 

54 

24,  69,  5P.0 

120 


z. 


Zenobia  v.  Axtell  110,  470,  537,  574 

Zuckerman  v.  Sonnenscheiu  6,  203 


TABLE   OF   STATUTES   CITED. 


*^*   The  Statutes  marked  with  an  asterisk  will  he  found  printed  in  full  in 
Appendix  C,  post,  pp.  664-683. 


PAGE 

*3  Ed.  I.  Stat.  Westminster  I.  c.  34    133, 
135,  417,  422,  427 
25  Ed.  III.  c.  2  411 

*2  Rich.  II.  Stat.  1,  c.  5         73,  134,  135, 
417,  422,427 
*12  Rich.  II.  c.  11  135,  417,  422,  427 

1  Ed.  VI.  c.  1,  s.  1  400 

2  &  3  Ed.  VI.  c.  1,  s.  2  400 

3  400 

1  &  2  Ph.  &  M.  c.  13  447 

lEliz.  0.1,8.6  402 

2,  s.  2  400 

3  400 

5  Eliz.  c.  4  201 

13  Eliz.  c.  12,  s.  2  401 

18  Ehz.  c.  3  58 

1  Jac.  I.  c.  11  59 

3  Jiic.  1,  c.  21  401 
21  Jac.  I.  c.  16                                335,  456 

s.  3  455 

19,  s.  7  4515 

*13  Car.  II.  Stat.  I.  c.  1,  s.  3  422 

13  &  14  Car.  11.  c.  33  11 

14  Car.  II.  c.  4,  s.  1  401 
17  Car.  II.  c.  8  355 
29  Car.  II.  c.  7,  s.  6  460 

9,  s.  1  402 

2  402 

IJac.  II.  c.  17  11 

1  W.  &  M.  Sess.  2,  c.  2  180 

3  W.  &  iM.  c.  10  57 

*9,  s.  4  59 

*4  W.  &  M.  c.  18,  s.  1  591,  595,  666 

5  &6  W.  &  RI.  c.  ll,s.  3  578 
8&9  Wm.  III.  c.  ll,s.  6  355 

9  Wm.  III.  c.  35  [c.  32  in  the  Stat- 
utes at  Large]  401 

4  &  5  Anne,  c.  3  (al.  c.  16),  s.  19  456 

5  Anne,  c.  8,  s.  23  135 

6  Anne,  c.  7  (al.  41),  s.  1  411 

2  422 

10  Anne,  c.  19,8.  113  12 
4Geo.  I.  c.  11  59 

6  Geo.  I.  c.  19,  s.  2  444 


PAGK 

7  Geo.  II.  c.  8,  s.  1  81 

9  Geo.  II.  c.  5,  s.  3  59 

*32  Geo.  HI.  c.  60  (Fox's  Libel  Act)    12, 

94,  667 


s.  1 

585 

3 

685 

4 

686 

36  Geo.  III.  c.  7 

411 

38  Geo.  III.  c.  71,  s.  17 

1.59 

*39  Geo.  III.  c.  79,  s.  29 

12, 

531,  068 

48  Geo.  III.  c.  58,  s.  1 

695 

63  Geo.  III.  c.  127,  s.  3 

402 

160 

401 

57  Geo.  III.  c.  6 

411 

60  Geo.  III.  and  1  Geo. 

IV. 

c.  4,  s.  1 

579,  069 

2 

579,  070 

*8,  s.  1 

394, 

409,  412 

2 

412 

3 

412 

4 

412 

3  Geo.  IV.  c.  40,  s.  3 

407 

*5  Geo.  IV.  c.  83,  s.  4 

407,  670 

6  Geo.  IV.  c.  50,  s.  30 

579 

c.  119 

12 

7  Geo.  IV.  c.  64,  s.  20 

582 

7  &  8  Geo.  IV.  c.  28,  s.  2 

576 

9  Geo.  IV.  c.  22,  s.  7 

248,  255 

32,  s.  3 

171 

11  Geo.  IV.  and  1  Wm.  IV. 

C.73 

s.l  412 

2&3  Wm.  IV.  c.  93 

447 

3  &  4  Wm.  IV.  c.  42,  s.  7 

456 

40 

438 

6  &  7  Wm.  IV.  c.  70 

12 

s.  6 

531 

8 

531,  532 

13 

531 

*19        513,  514 

515, 

532,  671 

c.  96,  s.  6 

178 

7 

161 

7  Wm.  IV.  and  1  Vict.  c.  23 

412 

*1  &  2  Vict.  c.  S8,  s.  2 

407,671 

105,  s.  1 

3V)G 

*2  &  3  Vict.  c.  12,  s.  2 

12,  672 

xlviii 


TABLE   OF   STATUTES   CITED. 


2  &  3  Vict.  c.  71,  8.  49 
*3  &  4  Vict.  c.  9 

Appendix  B. 
c.  24.  s.  2 
80,  s.  3 

5  &  6  Vict.  0.  38 

8.  1 

c.  97,  8.  4 
122,  8.  42 

6  &  7  Vict.  c.  08,  s.  1 

14 
♦Lord  Campbell's  Act,  c.  96,  s.  1 


7  &  8  Vict.  c.  84 

8  Vict.  c.  10,  s.  135 

18,  s.  134 
20,  s.  138 
*8  &  9  Vict.  c.  75,  s.  2 
*9  &  10  Vict.  c.  33,  s.  1 
c.  95,  s.  58 
73 
88 
113 
exxvi. 
11  &  12  Vict.  c.  12,  s.  1 
*s.  3 
42,  s.  1 
42,  s.  9 
78,  s.  2 


11  &  12  Vict,  c 


406 

187,  072 

406 

334,  335 

223 

404 

574 

453 

2J8 

401 

13 

299 

'405,  508,  074 

s.  2    29;J, 

301,465,487,491,437,508 

s.  3    378 

4   379, 

672,  573,  580 

s.  5  379, 390 

6    178, 

388,  576,  577,  589 

s.  7    303, 

364,  3t)5,  385,  583 

8.  8   590, 

695,  596 

143 

401 

401 

461 

300,  487,  077 

531,  078 

835,  453,  505 

508 

343,  58) 

445 

569 

411 

410,  412,  678 

573 

573 

586 

587 

445 

448 

674,  577,  582 

577 

577 

582 

577,  582,  586 

404 


12  &  13  Vict.  c.  101,  s.  2 

14  &  15  Vict.  c.  93,  s.  9 

100,  s.  1 

2 

3 
24 
25 
29 

15  &  16  Vict.  c.  76  (Common  Law 
I'rocedure  Act,  1852) 


8.  11  459 

16  401 

29  463 

40  325,  347 

*01     101,115,120,123,471,473, 

57-\  079 


70 
109 

ii2 

142 

(Schedule  B., 
10  &  17  Vict.  c. 


form  33) 
30,  s.  4 
5 


491,  492 
528 
628 
354 
103 
578 
678 


16  &  17  Vict.  c.  30,  s.  6 

9 

17  &  18  Vict 


1854) 


34,  s 
125 

8. 


18  Vict.  c.  27 
*18  &  19  Vict,  c 


,  1 

(C. 

.24 
25 
27 
51 

103 


L.  P.  Act, 


579 
625 
626 


533, 


41 

s.  1 
55,  s.  35 

19  &  20  Vict.  c.  16,  s.  1 

47 

97,  s.  12 
108,  s.  23 

20  &  21  Vict.  c.  43 

s.  4 
*c.83 

s.  1 
85,  s.  21 
25 
26 

21  &  22  Vict.  c.  90,  s.  27 

22  &  23  Vict.  c.  17 

23  &  24  Vict.  c.  28 
90,  s.  27 


120,  s.  19 

24  &  25  Vict.  c.  94,  s.  8 

90,  8.  46 
47 

c.    134    (Bankruptcy    Act, 
ss.  101,  102 

25  &  20  Vict.  c.  89,  s.  62 

27  &  28  Vict.  c.  47,  s.  2  - 

28  Vict.  c.  36,  s.  16 

28  &  29  Vict.  c.  18,  s.  4 
5 


513 
546 
546 
580 
601 
680 

12 
17,  59,  87,  679 
403 
425 
579 
369 
456 
566 
407 
407 
680 

12 
846 
351 
351 
531 
671 

81 
631 
370 
576 
379 
379 


453, 


405, 


1861) 


30  &,  31  Vict.  c.  35,  s.  2 

3 

142 

s.  5 

7 

10 

29 

31  &  32  Vict.  c.  54,  8.  5 

32  &  33  Vict.  c.  24 

s.  1 

Sched.  1 
2 


335 
334,  335,' 

300,  343, 
469,  566, 


513, 


68,  s.  4 
71,  s.  19 
77 
33  &  34  Vict.  c.  9,  ss.  30-34 
49,  s.  1 
77,  s.  18 
79.  s.  20 
c.  93  (Married  Women's  Property 
Act,  1870)       324,  346,  349, 
c.  93,  s.  1     81,  87, 
11       81, 


248 
461 
379 
446 
583 
583 
580 
571 
572 
341 
337 
569 
468, 
569 
570 
356 
12 
513 
531 
513 
396 
437 
437 
421 
397 
528 
407 

350 
349 
349 


TABLE   OF   STATUTES   CITED. 


xlix 


33  &  34  Vict.  c.  99  12,  513 

34  &  35  Vict.  c.  112  516 

s.  18         546 

36  &  37  Vict.  c.  6G   (Judicature  Act, 

1873)  325 

s.  24,  subs.  7  514 

25,  subs.  8  15 

11      505,  517 
39  437 

46  553 

49  562 

60  454 

67     325,  334,  468,  570 

37  &  38  Vict.  c.  50  (Married  Wo- 
men's Property  Act  Amendment 
Act,  1874)  324,  351 

s.  2         351,  352,  491 


37  &  38  Vict.  c.  50,  s.  5  351 

38  Vict.  c.  14,  8.  2  421 

38  &  39  Vict.  c.  63  (Sale  of  Food  & 

Druprs  Act,  1875)  54 

c.  77  (Judicature  Act,  1875)  344 

8.  22  551,  553,  554 

s.  33  3.35 

Appendix  A.,  form  No.  3  357 

"        C,  Forms  of   Pleadings, 

No.  14  372 

c.  86,  s.  17  201 

39  &  40  Vict.  c.  59  (Appellate  Juris- 
diction Act,  1876)  565 

s.  17  553,  554 

42  &  43  Vict.  c.  59,  s.  3  356 

*43  &  44  Vict.  c.  41  (Burial    Laws 
Amendment  Act,  1880),  s.  7       401,  682 


TABLE  OF  RULES  AND  ORDERS  CITED. 


JUDICATURE  ACT  (1875),  38  &  39  Vict.  c.  77. 


PAGE 

PAGE 

Order 

II. 

rule  2 

343 

Order  XVI. 

rule 

568 

III. 

" 

2 

459 

"  2 

668 

«< 

IV. 

" 

1 

459 

"  3 

636,  371,  568 

" 

2 

459 

"  4 

371 

« 

2o 

453 

"  6 

371 

« 

3a 

454,  459 

"  8 

346 

« 

V. 

" 

1 

454,  462 

"10 

366 

« 

4a 

556,  561 

"10  a 

366 

«< 

VI. 

'< 

1 

460 

"13 

344 

« 

VIII. 

« 

1 

459 

"17 

481 

<( 

IX. 

" 

1 

460 

"18 

481 

« 

la 

667 

"19 

481 

« 

2 

460 

"20 

481 

« 

3 

461 

"21 

481 

<( 

4 

461 

"    xvn. 

"  1 

458,  466 

" 

6 

461 

"  2 

366 

K 

6 

461 

"  4 

325,  347,  458, 

« 

6a 

461 

465 

« 

7 

461,  568 

"  5 

465 

" 

13 

460,  462,  464, 
667,  568 

"  6 
"  7 

365,  458,  465 
458,  466 

« 

14 

667 

"  8 

■  458.  466 

" 

X. 

460 

"  9 

458,  466 

«( 

XI. 

357 

"   XTX. 

"  2 

343,  495 

« 

1 

460 

"  3 

344,  372, 

« 

2 

356 

491 

<C 

4 

463 

..  4 

120,  470, 

XII. 

« 

1 

462 

473,  488 

« 

2 

462 

"  5 

474 

l( 

3 

462 

"11 

482 

II 

4  • 

567 

"14 

496 

<l 

5 

462,  567 

"16 

480 

" 

6a 

462,  567 

"17 

482,  483 

l< 

66 

463 

"18 

484 

II 

7 

463, 567 

"20 

480,  482 

l< 

8 

463 

"21 

497 

II 

9 

463 

"21 

482 

II 

12 

366.463 

"24 

470 

II 

12  a 

366,  463 

"28 

472 

« 

15 

468 

"30 

446 

<■ 

XIII. 

" 

1 

853,  354 

"31 

446 

l( 

2 

463 

XX. 

481, 495,  554 

l< 

5a 

462 

"  2 

667 

" 

6 

464,  568 

"  3 

567 

XVI 

" 

1 

365,  370,  465 

"  4 

300,  668 

TABLE   OF    RULES   AND   ORDERS   CITED. 


u 


rder       XXI. 

rule  1 

469 

Order     XXXVI. 

rules 

523 

"    Ic 

469 

"    9 

523 

XXII. 

"    1 

495 

"10 

523 

"    9 

372 

"11 

523 

XXIII. 

524 

"12 

523 

XXIV. 

"    1 

498,  500 

"13 

523,  525 

"   2 

498 

"14 

623 

"    3 

498,  500 

"15 

623 

XXV. 

522 

"17  a 

623 

XXVL 

522 

"18 

629 

"       XXVII. 

"    1 

479,  480,  481, 

"20 

529 

492,  493,  496, 

"21 

529 

498,  587 

"22 

652 

"   2 

498 

"22  a 

652,  554 

"    3 

498 

"2i 

652 

u   4 

500 

"33 

438 

"   5 

500 

"       XXXVII. 

"    1 

526 

"    6 

496,  537,  545 

"    3a 

511 

"    7 

498 

"36 

511 

"    9 

500 

"3c 

611 

"10 

500 

"    Sd 

511 

"11 

459 

"    3e 

611 

"    xxvm. 

569 

"    3/ 

611 

"    1 

477 

"    Sg 

511 

«    2 

478 

"    4 

526 

"    6 

478 

"46 

566 

"    6 

479 

XXXIX. 

554 

"    7 

478 

"    la 

557,  560,  561 

"    8 

479 

"    1  b 

556 

"    9 

479 

"    2 

657 

"10 

479 

"    3 

557 

"11 

479 

"    5 

657 

"12 

478,  479 

XL. 

"    2 

554 

"13 

479 

"    3 

553 

XXIX. 

"    1 

474 

"4a 

554,  562 

"    4 

496 

«    9 

662 

"    5 

.496 

"10 

.  554,  556 

"12 

500 

XLI. 

"    1 

652 

"14 

465 

"    6 

645 

XXX. 

801 

XLU. 

"    2 

432 

"    1 

300,  465 

"    4 

432 

491, 498,  501 

"    5 

432 

XXXI. 

"   2 

843,  503 

"    8 

367 

"    6 

509,  512 

"16 

562 

* 

"    7 

512 

"20 

■      432 

"    8 

509 

"22 

654 

"10 

515 

XLIV. 

432,  438 

"11 

516 

"    2 

433 

"  12 

515 

L. 

"    1 

355 

"  13 

517 

"    2 

346,  351 

"  14 

520 

LI. 

"    4 

466 

"  16 

620 

LIU. 

"    2 

562 

"  17 

521 

"    3 

562 

"  18 

521 

"    4 

499,  553 

"20 

432,  522 

LIV. 

"    2 

521 

"21 

621 

"    4 

499 

"22 

432,  521 

"6a 

499 

"23 

511,547 

LV. 

336,  338 

"      XXXV. 

"  12 

455, 466 

"    1 

834, 

"13 

465,  466 

469,  553,  570 

"     XXXVI. 

"    2  • 

569 

"    3 

467 

"    3 

500 

LVII. 

"    3 

499 

523,  524 

"6a 

495 

"   4 

500,  523 

"           LVII  A. 

553,  554 

"    4a 

600,  523 

LVIII. 

"    1 

661 

lii 


TABLE  OF  EULES  AND  OEDERS   CITED. 


Order  LVIII.  rule  2 
3 
4 


6 

5a 
6 
7 
8 


562 

Order  LVIII.  rule  10 

663 

"  12 

562,  663 

"  13 

56 

"  15 

556,  565 

"  16 

564 

"  17 

604 

LIX.   "  2 

663 

560 

565 
565 

560,  562 
564 
564 

537,  545 


PAET   L 


THE    LAW   OF    LIBEL    AND    SLANDER. 


CHAPTER    I. 

INTRODUCTOKY, 


No  man  may  disparage  the  reputation  of  another.  Every  man 
has  a  right  to  have  his  good  name  maintained  unimpaired.  This 
right  is  a  jus  in  rem^  a  right  absolute  and  good  against  all  the 
world,  (a) 

Words  which  produce  any  perceptible  injury  to  the  reputation 
of  another  are  called  Defamatory. 

Defamatory  words,  if  false,  are  actionable. 

False  defamatory  words,  if  written  and  published,  constitute  a 
libel ;  if  spoken,  a  slander. 

Words  which  merely  might  tend  to  produce  injury  to  the  repu- 
tation of  another  ai'e  not  defamatory,  and  even  though  false  are 
not  actionable,  unless  as  a  matter  of  fact  some  appreciable  injury 
has  followed  from  their  use. 

On  the  other  hand,  words  which  on  the  face  of  them  must  be 
injurious  to  the  reputation  of  the  person  to  whom  they  refer,  are 
clearly  defamatory,  and,  if  false,  are  actionable,  without  proof 
that  any  particular  damage  has  followed  from  their  use. 

Illustrations. 

To  say  "  A.  is  a  coward,"  or  "  a  liar,"  (V)  or  "  a  rascal,"  is  not  defamatorj% 
unless  it  can  be  proved  that  some  one  seriously  believed  and  acted  on  the  *  as-  Z 

sertion,  to  the  prejudice  of  A.     Such  words,  though  false,  are  not  actionable 

(«)  It   is  not  to  be  inferred  however  {h)  Or  that  he  bears  a  bad  reputation 

that  judgment  against  the  defendant  is  in  for  truth  and  .veracity  in   his   neighbor- 

the  sense  of  the  English  lavr  a  judgment  hood,  unless  published  in  writing  or  print. 

in  rem.     Corbley  v.  Wilson,  71  111.  209  ;  Studdard  v.  Trucks,  31  Ark.  726. 
McBee  v.  Fulton,  47  Md.  403. 


*  2  INTEODUCTION. 

without  some  evidence  to  show  that  A.'s  reputation  has  as  a  matter  of  fact  been  ac- 
tually impaired  thereby.     Dc  minimis  non  curat  lex. 

To  say  of  B. :  —  "  He  forged  his  master's  signature  to  a  cheque  for  £100,"  is  clearly 
defamatory,  and,  if  fiilse,  actionable.  It  must  injure  B.'s  reputation  to  bring  such  a 
specific  charge  against  him. 

In  any  given  case,  the  fact  that  the  words  employed  by  the 
defendant  have  perceptibly  injured  the  plaintiff's  reputation  may 
be  either 

(i.)  presumed  from  the  nature  of  the  words  themselves  ;  or, 
(ii.)  proved  by  evidence  of  their  consequences, 
(i.)  It  will  be  presumed  from  the  nature  of  the  words  them- 
selves, 

(a)  If  the  words,  being  written  and  published  or  printed 
and    published,   are   in   any  way  disparaging   to    the 
plaintiff  or  tend  to  bring  him  into  ridicule  and  con- 
tempt, 
(i)  If  the  words,  being  spoken, 

(1.)  charge  the  plaintiff  with  the  commission  of  some 

indictable  offence  ; 
(2.)  impute  to   the   plaintiff  a   contagious   disorder 

tending  to  exclude  him  from  society ; 
(3.)  are  spoken  of  the  plaintiff  in  the  way  of  his  pro- 
fession or  trade  ;    or  disparage  him  in  an  office 
of  public  trust. 
In  all  these  cases  the  words  are  said  to  be  actionable  per  se, 
because  on  the  face  of  them  they  clearly  must  have  injured  the 
plaintiff's  reputation. 

(ii.)  But  in  all  other  cases  of  spoken  words,  the  fact  that  the 

plaintiff's  reputation  has  been  injured  thereby,  must  be  proved 

at  the  trial  by  evidence  of  the  consequences  that  directly  resulted 

from  their  utterance.      Such  evidence   is   called    "  Evidence  of 

special  damage,"  as  distinguished  from  that  general  dam- 

*  3      age  which  the   law  *  assumes,  without   express   proof,  to 

follow  from  the  employment  of  words  actionable  pei'  se. 

Illustrations. 

To  say  of  A.  "  He  is  a  forger  and  a  felon  ;  "  or  "He  hath  the  French  pox  ;  "  to  call 
a  physician  a  quack,  a  tradesman  a  bankrupt,  or  a  lawyer  a  knave  ;  to  say  of  a  magis- 
trate that  he  is  a  corrupt  judge  ;  is  in  each  case  actionable  without  proof  of  special 
damage,     ^fortiori,  if  the  words  be  written,  or  printed,  and  published. 

2 


INTRODUCTION.  *  6 

But  to  call  a  man  a  cheat,  a  rogue,  and  a  swindler,  or  to  call  a  woman  an  adulteress, 
is  not  actionable,  without  proof  of  special  damage,  if  the  words  be  spoken  only  ;  but 
is  actionable  2;cr  se,  if  the  accusation  be  reduced  into  writing  and  published  to  the 
world. 

Thus  the  presumption  that  words  are  defamatory  arises  much  more 
easily  in  cases  of  libel  than  in  cases  of  slander.  Many  words  which  if 
printed  and  published  would  be  presumed  to  have  injured  the  plaintiff's 
reputation,  will  not  be  actionable  ^je?-  se,  if  merely  spoken.  The  reasons 
for  this  distinction  are  obvious  :  —  ^ 

1.  Vox  emissa  volat ;  litera  script  a  manet.  The  written  or  printed 
matter  is  permanent,  and  no  one  can  tell  into  whose  hands  it  may  come. 
Every  one  now  can  read.  The  circulation  of  a  newspaper  is  enormous, 
especially  if  it  be  known  to  contain  libellous  matter.  And  even  a  private 
letter  may  turn  up  in  after  years,  and  reach  persons  for  whom  it  was  never 
intended,  and  so  do  incalculable  mischief.  Whereas  a  slander  only  reaches 
the  immediate  bystanders,  who  can  observe  the  manner  and  note  the  tone 
of  the  speaker,  —  who  have  heanl  the  antecedent  conversation  which  may 
greatly  qualify  his  assertion,  —  who  probably  are  acquainted  with  the 
speaker,  and  know  what  value  is  to  be  attached  to  any  charge  made  by 
him;  the  mischief  is  thus  much  less  in  extent,  and  the  publicity  less 
durable. 

2.  A  slander  may  be  uttered  in  the  heat  of  a  moment,  and  under  a 
sudden  provocation  ;  the  reduction  into  writing,  and  the  publication,  of 
a  libel  show  greater  deliberation  and  malice. 

3.  A  third  reason  is  sometimes  given,  that  a  libel  is  more  likely  to  lead 
to  a  breach  of  the  peace.     But  I  doubt  if  this  is  so.     A  man  would 

be  more  tempted  to  personally  chastise  a  *  villain  who  slandered  *  4 
him  to  his  face,  than  a  libeller  who  lampooned  him  in  the  papers. 
Even  if  it  wejjp  so,  it  would  tend  to  explain  why  libel  is  a  crime  and  slan- 
der not,  rather  than  to  account  for  the  distinction  just  pointed  out  between 
the  evidence  required  in  the  respective  civil  actions.  For  this  is  a  further 
important  difference  between  Slander  and  Libel :  that  for  every  libel  crim- 
inal proceedings  may  be  taken  by  way  of  information  or  indictment,  if  the 
person  defamed  does  not  desire  damages  :  whereas  a  slander,  unless  it  be 
blasphemous,  seditious,  or  obscene,  is  not  criminal  at  all. 

Neither  do  the  first  two  reasons  assigned  appear  any  more  satisfactory 
to  Mr.  Starkie  than  this  last  one  does  to  me.  He  urges  with  gi-eat  force 
in  his  Commentary  prefixed  to  "  Folkard  on  Slander  and  Libel,"  4th 
edition,  p.  28,  that  the  distinction  taken  by  our  law  between  slander  and 
libel  in  this  respect  "  must  be  regarded  as  an  absolute  peremptory  rule,  not 
founded  on  any  obvious  reason  or  principle.  If  damage  is  to  be  presumed 
from  publishing  such  a  charge  in  writing,  why  is  not  some  damage  also  to 
be  presumed  from   publishing  the  fact   orally  ?     The  extent  of  publicity, 

3 


*  4  INTKODUCTION. 

and  quantity  of  damage  to  be  presumed  in  the  one  case  rather  than  in  the 
other,  is  obviously  casual  and  uncertain,  and  rather  affects  the  measure  and 
quantum  of  damages  than  any  principle  of  civil  liability."  And  so  again 
on  p.  31,  "the  extent  of  mischief  merely  affects  the  qitantum  of  damages, 
and  not  the  right  of  action."  But  with  all  deference  to  the  learned  author, 
the  mischief  complained  of  is  the  injury  to  the  plaintiff's  reputation  and 
not  the  pecuniary  damage  he  has  suffered ;  and  in  discussing  whether  ani/ 
such  injury  has  been  inflicted  to  anp  appreciable  degree,  surely  the  mode 
and  extent  of  the  publication  of  the  defamatory  words  are  relevant  matters 
for  enquiry.  The  expression  "  quantum  of  damages,"  when  applied  to  this 
question,  is  misleading ;  for  it  implies  that  some  damages  at  least  are  clearly 
due,  and  that  the  only  question  is  how  much.  Whereas,  once  grant  that 
even  nominal  damages  are  due  and  cadit  qucestio  :  there  is  no  longer  any 
distinction  between  slander  and  libel,  as  soon  as  it  is  admitted  that  the 
action  lies.  It  is  precisely  where  it  is  not  clear  that  any  injury  at  all  has 
been  inflicted,  Avhere  no  pecuniary  damage  is  proved,  and  the  Court  is 
doubting  if    any  right  of  action  exists,   that  the  distinction  ad- 

*  5        verted  to  arises.     *  The  Courts,  in  the  absence  of  any  evidence  of 

special  damage,  must  either  nonsuit  the  plaintiff,  or  say,  "  From  the 
nature  of  the  words  used,  and  the  circumstances  in  which  they  were  uttered 
or  published,  we  can  see  that  they  must  have  injured  the  plaintiff's  reputa- 
tion." And  they  are  more  inclined,  and  rightly  more  inclined,  to  take  the 
latter  course  when  the  words  are  printed  and  published  to  the  Avorld  than 
where  they  are  merely  uttered  to  a  few.  Anyhow  the  distinction  has  been 
recognized  in  English  law  by  Hale,  C.B.,  in  King  v.  Lake  ;  ^  by  Lord  Hard- 
wicke,  C.J.,  in  Bradley  v.  Methwyn  (1737)  j^  and  by  Lord  Mansfield, 
C.J.,  in  Thorley  v.  Lord  Kefry,^  and  in  numerous  other  cases,  and  is  far 
too  well  established  to  be  ever  shaken. 

The  intention  or  motive  with  which  the  words  we»e  emplo3'ed 
is  as  a  rule  immaterial.  If  the  defendant  has  in  fact  injured  the 
plaintiff's  reputation,  he  is  liable,  although  he  did  not  intend  so 
to  do,  and  had  no  such  purpose  in  his  mind  when  he  spoke  or 
wrote  the  words.  Every  man  must  be  presumed  to  intend  and 
to  know  the  natural  and  ordinary'  consequences  of  his  acts :  and 
this  presumption  (if  indeed  it  is  ever  rebuttable)  is  not  rebutted 
merely  by  proof  that  at  the  time  he  uttered  or  published  the 
words  the  defendant  did  not  attend  to  or  think  of  their  natural 
or  probable  consequences,  or  hoped  or  expected  that  these  conse- 
quences would  not  follow.  Such  proof  can  only  go  to  mitigate 
the  damages. 

1  2  Vent.  28,  Hardres,  470.  -  Selw.  N.  P.  982. 

8  4  Taunt.  355,  3  Camp.  214,  n. 
4         ' 


INTRODTTCTION 


Sometimes,  however,  it  is  a  man's  duty  to  speak  fully  and 
freely,  and  without  thought  or  fear  of  the  consequences  ;  and 
then  the  above  rule  does  not  apply.  The  words  are  privileged 
by  reason  of  the  occasion  on  which  they  were  employed  ;  and  no 
action  lies  therefor,  unless  it  can  be  proved  that  the  defendant 
was  actuated  by  some  special  spite  or  some  wicked  and  mahcious 
motive.!  But  in  all  other  cases  (although  the  pleader 
invariably  alleges  that  the  words  were  spoken  *  or  pub-  *  6 
lished  falsely  and  maliciously')  malice  in  fact  need  never  be 
proved  at  the  trial ;  the  words  are  actionable,  if  false  and  defam- 
atory, although  spoken  or  published  accidentally  or  inadvertently, 
or  with  an  honest  belief  in  their  truth,  (a) 

1  See  post,  Chapters  VIII.  and  IX. 


(a)  No  legal  term  has  been  the  sub- 
ject of  more  conflicting  views  than  malice 
in  the  law  of  Ubel  and  slander.  Until 
almost  within  living  memory  it  was  com- 
mon to  speak  of  malice  in  actions  for  de- 
famation of  character  as  something  real 
(a  res,  so  to  speak)  in  relation  to  the 
ground  of  liability,  though  with  nothing 
like  definition  of  its  meaning.  Latterly 
it  has  come  to  be  -said  that  malice  as  a 
ground  of  action  is  nothing  of  substance, 
that  it  is  a  mere  abstraction  which  we 
have  to  deal  with  as  one  of  the  burdensome 
legacies  of  an  earlier  stage  of  the  law  ;  and 
proceeding  to  definition,  so  far  as  defini- 
tion can  be  predicated  of  what  is  unreal, 
it  is  commonly  said  (and  in  a  sense  it  is 
true)  that  malice  as  applied  to  slander  and 
libel  means  the  absence  of  legal  excuse  for 
the  publication.  See  ^wsi,  p.  265.  Now 
with  reference  to  this  conflict  it  has  some- 
times been  thought  that  light  was  to  be 
found  in  legal  history  ;  and  as  for  the 
actual  origin  of  the  use  of  the  term  this  is 
no  doubt  true.  It  is  tolerably  clear  that 
the  term  as  used  in  the  law  of  defamation 
if  not  elsewhere  has  been  borrowed  from 
the  ecclesiastical  law  ;  and  it  is  almost 
certain  that  its  use  in  the  spiritual  courts 
was  primarily  jurisdictional.  Those  courts 
punished  offences  which  were  sinful  and 
because  they  were  sinful,  the  essential  ele- 
ment of  which  was  called  malitin.  An 
illustration  may  be  seen  in  the  early 
statute  Ca.d.  1285)  of  Circumspecte  agatis, 
quoted    in    the   appendix    to    the   present 


work,  p.  665  ;  which  statute  brings  the 
subject  of  defamation  within  the  cogni- 
zance of  the  spiritual  courts  upon  this 
specific  ground  of  sin.  But  it  was  no 
more  true  in  the  thirteenth  than  in  the 
nineteenth  century  that  an  imputation 
upon  a  man's  character  was  always  (not  to 
say  necessarily)  malicious.  Such  imputa- 
tion was  however  known  as  matter  of 
common  experience  if  not  of  consciousness 
to  be  malicious  in  most  cases.  This  raised 
or  rather  teas  a  ground  of  presumption  ; 
and  upon  this  presumption,  though  some- 
times it  was  contrary  to  the  fact,  ecclesias- 
tical jurisdiction  was  founded.  From 
being  a  necessary  ground  of  jurisdiction 
in  the  spiritual  courts  it  came  afterwards, 
when  the  civil  courts  acquired  jurisdiction 
(probably  under  the  St.  of  Westm.  2,  ch. 
24),  to  be  considered  that  malice  was  the 
ground  of  temporal  redress,  though  of 
course  the  jurisdiction  of  the  temporal 
courts  was  not  based  upon  malice. 

This  if  true,  as  the  indications  suggest, 
shows  indeed  that  the  use  of  the  term 
malice  had  in  fact  an  accidental  origin  ; 
but  it  does  not  follow  that  it  would  not 
have  found  a  similar  place  in  the  law  (that 
is,  as  a  ground  of  redress  in  the  fir.st  in- 
stance) had  not  the  spiritual  courts  ever 
existed.  The  publication  of  defamation 
is,  as  it  appeared  to  the  ecclesiastics  long 
ago,  commonly  malicious  ;  and  this  fact 
must  naturally  have  suggested  itself  as 
material  to  liability.  If  observation  had 
shown  that  it  was  commonly  innocent  and 


INTRODUCTION. 


Illustrations. 


The  Protestant  Electoral  Union  published  a  book  called  "The  Confessional  TJn- 
maskeu."  Their  motive  in  so  doing  was  "not  only  innocent  but  praiseworthy,"  viz.:  — 
to  promote  the  spread  of  the  Protestant  religion,  by  exposing  the  abuses  of  the  Roman 
Catholic  system  ;  but  certain  passages  in  tlic  book  were  necessarily  obscene.    Held,  that 


proper  for  men  to  speak  of  each  other  in 
terms  of  (if  false)  defamation,  it  is  ex- 
tremely doubtful  if  an  action  w-ould  ever 
liave  been  entertained  without  evidence  to 
overcome  the  jiresumption.  In  other 
words  the  injury  to  reputation  while 
essential  to  liability  could  not  alone  have 
been  a  ground  of  action.  The  fact  that 
the  presumption  is  the  other  way,  the 
fact  that  is  to  say  that  men  commonly  are 
malicious  in  speaking  ill  of  each  other, 
can  hardly  be  considered  as  having  the 
effect  of  making  malice  (the  implied  malice 
of  the  law)  an  unnecessary  factor  of  lia- 
bility ;  though  what  makes  it  appear  so  is 
undoubtedly  the  very  fact  of  the  presump- 
tion. The  truth  appears  to  be  that  malice 
in  the  first  instance  is  necessary  to  lia- 
bility ;  but  malice  (if  that  is  now  to  be 
thought  a  hard  saying)  is  shown  by  the 
publication  of  the  supposed  defamation. 
It  is  shown  in  the  fact  that  common  ex- 
perience finds  malice,  actual  malice,  in  it ; 
and  unless  the  inference  of  experience  is 
overturned  as  not  true  to  the  particular 
case  malicf  is  established,  and  the  defend- 
ant is  liable.  Again,  to  answer  a  pos- 
sible objection,  >it  is  in  the  last  analysis 
malice  which  gives  the  publication  a  natu- 
ral tendency  to  harm.  "With  an  adecjuate 
motive  for  the  publication  harm  would 
not  generally  follow.  Hence  malice  is 
essential  to  the  plaintiffs  case.  In  this 
view  of  the  case  malice  "in  law"  as  it  is 
called  and  malice  in  fact  are  different  only 
in  the  way  in  which  they  are  proved  ;  they 
are  in  point  of  .siibstance  the  same  thing. 
And  this  view  of  the  term  has  not  been 
wh(dly  overlooked  in  the  midst  of  that 
recent  current  of  thought  which  has  seen 
in  malice  as  a  ground  of  liability  nothing 
but  an  abstraction.  Thus  in  one  of  the 
most  rigidly  reasoned  cases  to  be  found  in 
the  books  Mr.  Justice  Christiancy  says 
that  there  are  not  two  kinds  of  malice  in 
the  law  of  defamation.  Both  the  supposed 
kinds  are  phases  of  actual  nwlice,   "  the 

6 


difference  being  only  in  the  mode  of  proof. 
And  in  both  cases  the  burden  of  making 
this  proof  [of  malice]  rests  upon  the  plain- 
tiff." Huson  v.  Dale,  19  Mich.  17,  30. 
So  in  Wilson  v.  Noonan,  35  Wis.  321,  and 
in  Townshend,  Slander,  §  387.  In  a  sense 
indeed  it  is  perfectly  consistent  with  this 
to  say  that  malice  is  the  want  of  legal 
excuse  ;  in  the  sense,  that  is,  that  where 
there  is  w-anting  an  adequate  motive  for 
the  publication  there  is  commonly  malice, 
and  hence  sufficient  ground  for  presuming 
it  in  the  particular  case.  But  in  so  far  as 
the  term  "  want  of  legal  excuse"  is  used 
as  definition  seeking  to  do  away  with 
malice  fi-om  the  words  alone  as  a  res  to  be 
proved  it  is  untrue. 

Nor  is  there  anything  anomalous  in 
this  view  of  malice  as  a  fact  shown  by 
mere  proof  of  the  publication.  Intention 
is  necessary  to  a  civil  action  for  a  battery 
as  is  shown  by  the  fact  that  proof  of 
physical  compulsion  of  the  stroke  would 
be  a  defence  to  such  a  suit ;  but  the  inten- 
tion is  shown  by  proof  of  the  stroke,  since 
in  ordinary  cases  a  blow  is  intentional. 

Ujion  this  view  of  the  so-called  implied 
malice  it  is  not  difficult  to  understand 
(what  would  otherwise  be  an  anomaly) 
how  punitive  or  exemplary  damages  may 
be  awarded  without  evidence  of  malice 
aliunde.  Punitive  damages  are  not  com- 
pensation for  deep  injury  ;  they  are  not 
compensation  at  all,  but  are  what  the  word 
punitive  itself  declares,  punishment,  smart 
money.  Now  on  the  words  themselves 
when  deemed  sufficiently  outiageous, 
whether  written  or  spoken,  the  jury  may 
award  punitive  damages.  Evening  News 
Assoc.  V.  Tryon,  42  Mich.  549  ;  Scripps 
V.  Reilly,  38  Mich.  10  ;  Scripps  v.  Fester, 
41  Mich.  742  ;  Buckley  v.  Knapp,  48  Mo, 
152;  Clements  v.  Maloney,  55  Mo.  352; 
Bump  V.  Betts,  2.3  Wend.  85  ;  Hubbard 
V.  Eutledge,  52  Miss.  581  ;  Hamilton  v. 
Eno,  81  N.  Y.  116,  127  ;  Schmisseur  v. 
Kreilich,  92   111.   347  ;    Flagg  v.   Roberts, 


INTRODUCTION. 


6 


its  publication  was  a  misdemeanor.  All  copies  which  the  defendant  had  for  sale  were 
ordered  to  be  destroyed  as  obscene  books.  Neither  the  law  nor  the  religion  of  England 
permits  any  one  to  "do  evil  that  good  may  come."  R.  v.  Hicklin,  L.  R.  3  Q.  B.  371  ; 
37  L.  J.  M.  C.  89  ;  16  W.  R.  801  ;  18  L.  T.  395  ;  11  Cox  C.  C.  19 ;  Steele  v.  Brannan, 
L.  R.  7  C.  P.  261  ;  41  L.  J.  M.  C.  85  ;  20  W,  R.  607  ;  26  L.  T.  509.  And  see  R.  v. 
Bradlaugh  &  Besant,  2  Q.  B.  D.  569  ;  46  L.  J.  M.  C.  286. 


67  111.  485  ;  Storey  v.  Early,  86  111.  461  ; 
Snyder  v.  Fulton,  34  Md.  128  ;  Nolan  v. 
Traber,  49  Md.  460.  The  special  severity 
of  words  actionable  without  such  severity 
does  not  in  reality  make  malice  ;  it  only 
shows  more  malice,  or  it  makes  clear  tlie 
malice  which  an  occasion  might  otherwise 
have  made  legally  improbable.  All  defa- 
mation is  severe  and  unendurable  ;  and 
mere  difference  of  degree  of  intensity  could 
not  therefore  create  anything. 

This  disposition  of  the  term  malice  re- 
lieves us  in  great  measure  of  the  need  of 
framing  a  definition  ;  indeed  it  relieves  us 
altogether  of  the  need  of  a  definition  of  the 
ordinary  implied  malice  of  the  books. 
As  for  that,  all  has  been  done  when  it  has 
been  ascertained  what  words  or  language 
are  actionable  per  se ;  the  publication  of 
words  or  language  of  that  character  is  com- 
monly malicious,  and  is  to  be  deemed  ma- 
licious therefore  in  the  particular  case 
unless  the  natural  presumption  is  over- 
turned ill  legal  manner.  That  actionable 
words  or  language  are  presumptively 
malicious,  see  Gabe  v.  lIcGinnis,  68  Ind. 
538  ;  Zuckerman  v.  Sonnenschein,  62  111. 
115  ;  riagg  V.  Roberts,  67  111.  485  ;  Whit- 
temore  v.  Weiss,  33  Mich.  348  ;  Smith  v. 
State,  32  Texas,  594  ;  Pittock  v.  O'Niell, 
63  Penn.  St.  253  ;  Barr  v.  Moore,  87  Penn. 
St.  385  ;  Rodgers  v.  Kline,  56  Miss.  808  ; 
Buckley  v.  Knapp,  48  Mo.  152  ;  Wilson 
V.  Noonan,  35  Wis.  321  ;  Lick  v.  Owen, 
47  Cal.  252  ;  Commonwealth  v.  Morgan, 
107  Mass.  199.  And  these  cases  show 
that  there  is  no  difference  between  the  law 
of  libel  and  the  law  of  slander  in  this  par- 
ticular. But  Lick  V.  Owen,  supra,  is 
wrong  (and  justifies,  if  it  be  necessary  to 
saj  that,  this  discussion  of  malice)  in  as- 
serting that  the  presumption  because  legal 
cannot  be  rebutted  ;  unless  that  is  the  ef- 
fect of  statute.  Yet  that  is  the  natural 
deduction  to  be  drawn  from  the  ordinary 
way  of  treating  implied  malice.  Tlie 
books  declare  that  such  malice  is  malice  in 
law ;  and  if  that  expression  be  used  with 


precision  the  jury  has  no  right  to  find 
against  it.  See  Morgan  v.  Booth,  13  Bush, 
480,  which  says  that  actual  malice  is  for 
the  jury,  as  though  implied  malice  were 
not.  But  if  what  we  have  stated  be  true, 
implied  malice  is  not  malice  as  matter  of 
law,  but  is  simply  malice  in  fact  and  hence 
capable  of  being  rebutted.  It  should  be 
stated  however  that  the  California  court 
held  that  evidence  of  circumstances  ("oc- 
casion") was  admissible  to  reduce  the 
damages.  It  has  no  doubt  given  color  to 
the  impression  that  implied  malice  is  mal- 
ice as  matter  of  law,  that  it  is  uniformly 
held  that  except  for  the  purpose  of  sustain- 
ing a  privilege  the  defendant  cannot  give 
evidence  of  want  of  malice  except  as  he 
can  find  the  same  in  external  facts.  Rod- 
gers V.  Kline,  56  Miss.  808  ;  Wilson  v. 
Noonan,  35  Wis.  321  ;  Powers  v.  Cary,  64 
Maine,  9;  Haley  v.  State,  63  Ala.  83,  87; 
Whittemore  v.  Weiss,  33  Mich.  348  ;  and 
other  cases  above  cited.  But  this  rule  ap- 
pears to  proceed  upon  grounds  of  policy  ; 
it  would  be  obviously  impolitic  to  permit 
a  party  to  testify  concerning  facts  of  his 
own  sole  consciousness  in  bar  of  an  action 
when  the  opposite  party  would  generally 
have  no  means  of  disproving  the  statements 
however  false.  It  must  be  conceded  that 
the  fact  of  a  newspaper  publisher  being 
liable  for  defamation  published  in  his  pa- 
per in  his  absence  and  without  his  knowl- 
edge (Dunn  V.  Hall,  1  Ind.  344 ;  see 
Commonwealth  v.  Morgan,  107  Mass.  199) 
shows  that  there  is  one  case  in  which  lia- 
bility cannot  rest  on  malice  in  the  defend- 
ant ;  but  to  this  it  must  be  replied  that 
the  whole  law  of  agency,  of  which  this  is 
only  a  particular  example,  is  anomalous  in 
imposing  upon  an  innocent  man  the  conse- 
qtiences  of  an  act  not  his  own.  But  some- 
body has  been  malicious  presumably  even 
in  tliis  case. 

It  would  then  be  better,  it  is  apprehend- 
ed, in  ordinary  cases  in  which  no  evidence 
of  malice  apart  from  the  publication  is  in- 
troduced, if  the  courts  would  say  nothing 


*  6  INTRODUCTION. 

If  a  man  deliver  hy  mistake  a  paper  out  of  his  study  where  he  has  just  written  it; 
he  will,  it  seems,  be  liable  to  an  action,  if  the  paper  prove  libellous,  although  he  never 
intended  to  publish  that  paper,  but  another  innocent  one.  Note  to  Mayne  v.  Fletcher, 
4  M.  &  Ry.  312  ;  of.  R.  v.  Paine,  5  Mod.  167. 

The  plaintiff  told  a  laughable  story  against  himself  in  company  :  the  defendant  pub- 
lished it  in  the  newspaper  to  amuse  his  readers,  assuming  that  the  plaintiff  would  not 
object.  The  plaintiff  recovered  damages,  £10.  Cook  v.  Ward,  6  Bing.  409  ;  4  M.  & 
P.  99. 

For  though  he  told  it  of  himself  to  his  friends,  he  by  no  means  courted  public  ridi- 
cule.    And  that  the  publication  was  "only  in  jest,"  has  long  been  held  no  defence  [a). 

"Where  a  clergyman  in  a  sermon  recited  a  story  out  of  Fox's  Martyrology,  that  one 
Greenwood  being  a  perjured  person  and  a  great  persecutor,  had  great  plagues  inflicted 
upon  him,  and  was  killed  by  the  hand  of  God  ;  whereas,  in  truth,  he  never  was  so 
plagued,  and  was  himself  actually  present  at  that  discourse,  —  the  words  being  delivered 
only  as  a  matter  of  history,  and  not  with  any  intention  to  slander,  it  was  adjudged  for 
the  defendant.  Greenwood  r.  Prick,  Cro.  Jac.  91,  cited  in  1  Camp.  270;  and  also  in 
R.  V.  Williams,  13;How.  St.  Tr.  1387. 

But  Lord  Denman  and  the  court  of  Q.  B.  said  most  positively  in  Hearne  v.  Stowell, 
12  A.  &  E.  726,  that  this  case  is  not  law.  Mr.  Greenwood  would  therefore  in  the  pres- 
ent day  have  recovered  at  least  nominal  damages. 

*  7  *  A  barrister,  editing  a  book  on  the  Law  of  Attorneys,  referred  to  a  case.  Re 

Blake,  reported  in  30  Law  Journal  Q.  B.  32,  and  stated  that  Mr.  Blake  was 
struck  off  the  rolls  for  misconduct.  He  was  in  fact  only  suspended  for  two  years,  as 
appeared  from  the  Law  Journal  report.  The  publishers  were  held  liable  for  this  care- 
lessness, although  of  course  neither  they  nor  the  writer  bore  'Mr.  Blake  any  malice. 
Damages  £100.     Blake  v.  Stevens  and  others,  4  F.  &  F.  232  ;  11  L.  T.  543. 

The  printers  of  a  newspaper,  by  a  mistake  in  setting  up  in  type  the  announcements 

at  all  to  the  jury  about  malice,    simply  the  meaning  of  the  express  malice  concern- 

o-iving  the  instruction  that  if  the  words  or  ing  proof  of  which  the  law  now  speaks, 

language  are  proved  they  should  find  (if  it  And  this  would  be  the  proper  place  to  con- 

be  a  civil  case)  for  the  plaintiff,  and  that  sidcr  the  question,  What  then  constitutes 

punitive    damages   might  be   awarded    if  evidence  of  this  malice  aliunde  ?  but  the 

the  evidence  (i.e.  the  mere  words  of  Ian-  author  has  in  keejiing  with  the  plan  of  his 

guacre)  established  an  outrageous   charge,  work   presented   that  subject  in   another 

but  the  question  of  what  may  for  conven-  place.     The  question  referred  to  will  be 

ience    be   called    express    malice    (malice  reserved    for  consideration    at   the   same 

aliunde)  oiton  axise^.     The  plaintiff  may  place.     See 2ws<,  Chapter  IX.     The  present 

contend  that  he  lias  a  just  claim  to  ask  the  note  should  not  be  closed  however  without 

infliction  of  punishment  upon  the  defend-  observing  that  aside  from  explaining  the 

ant,  if  not  in  the  mere  language  proved,  at  implied  malice  of  the  books  malice  is  im- 

all  events  in  the  circumstances  attending  portant  only  in  one  of  the  two  particulars 

the  publication  ;  or  the  presumed  malice  just  suggested,  to  establish  the  right  to 

of  the  publication  may  have  been  rebutted  punitive  damages  or  to  offset  a  supposed 

by  inference  derived  from  the  occasion  of  privilege.     It  may  be  further  added  that 

the  publication,  and  he  may  wish  in  turn  express  malice  may  be  shown  though  not 

to  show  that  this  inference  cannot  be  ac-  alleged  as  such  in  the  declaration.    AVilson 

cepted  in  the  particular  case  since  there  are  v.  Noonan,  35  Wis.  321. 

indications  of  positive  malice  (aside  from  (a)  So  of  cases  of  slander.     Hatch  v. 

all  inference)  at  variance  with  it.    in  regard  Potter,  7   111.   725;  McKee  v.    Ingalls,   4 

to  these  and  some  other  cases  to  be  con-  Scam.    30  ;   Long   v.    Eakle,  4  Md.  454  ; 

sidered  in  the  note  on  Express  Malice,  it  is  Donoghue  v.  Hayes,  Hayes  (Ireland),  265. 
necessarv  to  have  a  clear  understanding  of 


INTRODUCTION.  *  7 

from  the  London  Gazette,  placed  the  name  of  the  plaintiff's  firm  under  the  heading 
"  First  Meetings  under  the  Bankruptcy  Act "  instead  of  under  "  Dissolutions  of  Partner- 
ship." An  ample  apology  was  inserted  in  the  next  issue :  no  damage  was  proved  to 
have  followed  to  the  plaintifi' :  and  there  was  no  suggestion  of  any  malice.  In  an  ac- 
tion for  libel  against  the  proprietor  of  the  paper,  the  jury  awarded  the  plaintiff  £50 
damages.  Held,  that  the  publication  was  libellous,  and  that  the  damages  awarded 
were  not  excessive.     Shepheard  v.  Whitaker,  L.  R.  10  C.  P.  502  ;  32  L.  T.  402. 

False  defamatory  words  then,  if  spoken,  constitute  a  slander : 
if  written  and  published,  a  libel.  The  word  "•  written  "  includes 
any  printed,  painted,  or  any  other  permanent  representation  not 
transient  in  its  nature  as  are  spoken  words. 

The  writing  may  be  on  paper,  parchment,  copper,  wood,  or 
stone,  or  on  any  kind  of  substance  in  fact ;  and  may  be  made 
with  any  instrument,  pen  and  ink,  blacklead-pencil,^  or  in 
chalk,  &c.  A  picture  or  effigy  may  also  be  a  libel,  or  any  other 
mark  or  sign  exposed  to  view  and  conveying  a  defamatory 
meaning.^ 

A  libel  is  defined  in  the  Civil  Code  of  the  State  of  New  York, 
s.  29,  to  be  a  "  false  and  unprivileged  publication  by  writing, 
printing,  picture,  effigy,  or  other  fixed  representation  to  the 
eye,  which  exposes  any  person  to  hatred,  contempt,  ridicule,  or 
obloquy,  or  which  causes  him  to  be  shunned  or  avoided,  or  which 
has  a  tendency  to  injure  him  in  his  occupation." 

By  s.  30  of  the  same  code,  a  slander  is  defined  to  be  "  a 
false  and  unprivileged  publication,  other  than  libel,  *  which        *  8 
...  by  natural  consequence  causes  •  .  .  damage." 

Illustrations. 

A  caricature  or  scandalous  painting  is  a  libel.  Anon.,  11  Jlod.  99  ;  Austin  v.  Cul- 
pepper, 2  Show.  313  ;  Skin.  123  ;  Du  Bost  v.  Beresford,  2  Camp.  511. 

A  chalk  mark  on  a  wall  may  be  a  libel,  and  as  the  wall  cannot  conveniently  be 
brouglit  into  court,  secondary  evidence  may  be  given  of  the  insciiption.  ]\Iortimer  v, 
M'Callan,  6  M.  &  W.  58.     See  Spall  v.  Massey  and  others,  2  Stark.  559. 

A  statue  may  be  a  libel ;  so  is  fixing  up  a  gallows  against  a  man's  door.  Hawkins' 
Pleas  of  the  Crown,  8th  edition,  542  ;  5  Rep.  125,  h. 

Hieroglyphics,  a  rebus,  an  anagram,  or  an  allegory  may  be  a  libel. 

Ironical  praise  may  be  a  libel. 

A  man's  reputation  may  also  be  injured  by  the  deed  or  action 
of  another  without  his  using  any  words;  and  for  such  an  injury 
he  has  an  action  on  the  case ;  but  such  cases  are  not  within  the 
scope  of  the  present  treatise. 

1  Geary  v.  Physic,  5  B.  &  C.  238.  2  5  Rep.  125. 

9 


*  8  INTRODUCTION. 

Illustrations. 

A  banker  having  in  his  hands  sufficient  funds  belonging  to  his  customer  dishonors 
his  cheque  :  the  customer  may  recover  substantial  damages,  without  proof  ot  any  special 
damage  ;  for  it  is  clear  that  such  an  act  must  injure  the  customer's  reputation  for  sol- 
vency. Marzetti  v.  "Williams,  1  B.  &  Ad.  415  ;  Robinson  v.  Marchaut,  7  Q.  B.  918; 
15  L.  J.  Q.  B.  134  ;  10  Jur.  156  ;  Eolin  and  another  v.  Steward  P.  0.,  14  C.  B.  595; 
23  L.  J.  C.  P.  148  ;  18  Jur.  576  ;  2  C.  L.  Pt.  759. 

Defendant  caused  plaintiff's  goods  to  be  seized  on  an  unfounded  claim  for  debt ;  the 
neighbors  consequently  deemed  the  plaintiff  insolvent.  The  plaintiff  was  held  entitled 
to  substantial  damages.  Brewer  v.  Dew  and  another,  11  M.  &  W.  625  ;  Bracegiidle 
V.  Orford,  2  Maule  k  S.  77. 

The  defendant  set  up  a  lamp  on  the  wall  adjoining  the  plaintiff's  dwelling-house  and 
kept  it  burning  in  the  daytime,  thereby  inducing  the  passers-by  to  believe  that  plain- 
tiff's house  was  a  brothel.  This  was  held  to  be  a  trespass  to  the  wall  and  being  per- 
manent in  its  nature  also  a  libel  in  effigy.  Jefferies  v.  Duncombe,  2  Camp.  3  ;  11  East, 
226  ;  Spall  v.  Massey,  2  Stark.  559  ;  Plunket  v.  Gilmore,  Fortescue,  211. 

*  9  *  And  so  as  to  "riding  Skimraington,"  "rough  music,"  burning  in  effigy, 

and  other  modes  of  holding  a  man  up  to  public  obloquy  without  especial  words 
of  defamation.  See  Sir  William  Bolton  v.  Dean,  cited  in  Austin  v.  Culpepper,  Skin. 
123  ;  2  Show.  313  ;  Mason  v.  Jeuning.s,  Sir  T.  Raj-m.  401;  CroppiJ.  Tilney,  3  Salk.  226. 
So  too  in  actions  of  false  imprisonment  and  malicious  prosecution,  (a)  the  jury  may 
award  damages  for  the  injury  done  to  the  plaintiff's  reputation  by  the  charge  made 
against  hiiu,  and  by  his  being  marched  in  custody  through  the  public  streets  ;  although 
in  the  former,  the  gist  of  the  action  is  the  direct  trespass  to  the  person,  and  in  the 
latter  the  maliciously  setting  the  law  in  motion  without  reasonable  or  probable  cause. 

In  Roman  law  there  are  many  instances  given  in  which  a  man's  reputation  was 
assailed,  not  by  words,  but  by  acts.      E.g.  : 

(i.)  By  refusing  to  accept  a  solvent  person  as  surety  for  a  debt,  intending  thereby 
to  impute  that  he  is  insolvent.     (D.  2,  8,  5,  1.) 

(ii. )  By  claiming  a  debt  that  is  not  due,  or  seizing  a  man's  goods  for  a  fictitious 
debt,  with  intent  to  injure  his  credit.  (Gai.  III.  220  ;  Just.  Inst.  IV.  iv. 
1  ;  D.  47,  10,  15,  33.) 

(iii. )  By  claiming  a  person  as  your  slave,  knowing  him  to  be  free.  (D.  47,  10, 
12  &  22.) 

(iv.)  By  forcing  your  way  into  the  house  of  another.     (D.  47,  10,  23,  &  44.) 

(v.)  By  persistently  following  about  a  matron  or  young  girl  respectably  dressed, 
or  a  youtli  still  wearing  the  prsetexta,  such  constant  pursuit  being  an  impu- 
tation on  their  chastity.  (Gai.  III.  220 ;  Just.  Inst.  IV,  iv.  1  ;  D.  47,  10, 
15,  15-22.) 

(vi. )  By  needlessly  fleeing  for  refuge  to  the  statue  of  the  emperor,  thereby  mak- 
ing it  appear  that  some  one  was  unlawfullj'  oppressing  you.  (D.  48,  16, 
28,  7)  ;  though  it  is  difficult  to  see  in  this  case  how  it  was  determined  who 
was  the  right  plaintiff. 

(fl)  It  is  said  in  Jamigan  i>.  Fleming,  43  Turpin    v.   Remy,    3  Blackf.    210;    Bod- 

Mis.s.  710,  that  an  action  for  .slander  can  well  v.  Osgood,  3  Pick.    379  ;    Pippet  v. 

be  brought  on  account  of  a  malicious  pros-  Hearne,   5   Barn.    &  Aid.   634  ;  Morris  v. 

ecution  ;  but  that,  it  should  seem,  is  wrong  Scott,    21  Wend.    281  ;    Shaul  v.   Brown, 

except  perhaps  in  cases  in  which  the  court  28  Iowa,  37  ;  Bigelow,  Torts,  89  (Students' 

of  the  prosecution  hail  no  jurisdiction.  See  series). 
Braveboy  v.  Cockfield,   2  McMull.    270  ; 

10 


INTRODUCTION.  *  'J 

The  person  defamed  has  a  civil  remedy  to  recover  damages, 
and  in  some  cases  he  can  also  proceed  criminally  by  way  of  infor- 
mation or  indictment,  and  have  the  defamer  punished  as  an 
offender  against  the  state.  But  there  is  now  no  method  of  an- 
ticipating or  preventing  a  libel  or  a  slander ;  there  is  no  longer 
any  censorship  of  tlie  press  in  this  country.  Any  man  is  free  to 
speak  or  to  write  and  publish  whatever  he  chooses  of  an- 
other, *  subject  only  to  this,  that  he  must  take  the  conse-  *  10 
quences,  should  a  jury  deem  his  words  defamatory.  This 
is  what  is  meant  by  "the  liberty  of  the  press." 

"  The  liberty  of  the  press,"  says  Lord  Mansfield,  in  R.  v.  Dean 
of  St.  Asaph,!  u  consists  in  printing  without  any  previous  licence, 
subject  to  the  consequences  of  law."  Lord  EUenborough  says  in 
R.  V.  Cobbett : "-  "  The  law  of  England  is  a  law  of  liberty,  and 
consistently  with  this  liberty,  we  have  not  what  is  called  an 
imprimatur ;  there  is  no  such  preliminary  licence  necessary  ;  but 
if  a  man  publish  a  paper,  he  is  exposed  to  the  penal  consequences, 
as  he  is  in  every  other  act,  if  it  be  illegal."  Lord  Kenyon  shortly 
puts  it  thus  in  R.  v.  Cuthell:^  "A  man  may  publish  anything 
which  twelve  of  his  countr3'men  think  is  not  blamable." 

But  it  was  by  no  means  always  so  in  England.  It  was  quickly  perceived 
that  the  printing  press  may  be  as  great  a  power  for  evil  as  for  good.  And 
whenever  any  large  proportion  of  any  nation  is  disaffected  towards  the 
Government,  to  allow  a  free  press  is  almost  impossible. 

(i.)  The  first  plan  adopted  by  our  English  monarchs  was  to  keep  all  the 
printing  presses  in  their  own  liands,  and  allow  no  one  to  print  anything 
except  by  special  Royal  licence.  All  printing  presses  were  thus  kept  under 
the  immediate  supervision  of  the  King  in  Council,  and  regulated  by  procla- 
mations and  decrees  of  the  Star  Chamber  by  virtue  of  the  King's  Preroga- 
tive. In  1557  the  Stationers'  Company  of  London  was  formed.  The 
exclusive  privilege  of  printing  and  publishing  in  the  EngHsh  dominions 
was  thus  given  to  ninety-seven  London  stationers  and  their  successors  by 
regular  apprenticeship,  and  the  Company  was  empowered  to  seize  all  pub- 
lications by  men  outside  their  guild.  Later,  by  a  decree  of  the  Star 
Chamber  in  1586,  one  printing  press  was  allowed  to  each  University. 

(ii.)   Not   content  with  this  government  monopoly  of  the  "Art  and  mys- 
terie  of  Printing,"  which  continued,  in  theory  at  all  events,  till  1G37, 
Queen  Ehzabeth,  in  1559,  determined  to  have  *  all  books  read  over      *  11 

1  3  T.  R.  431,  n.  "  29  Howell's  St.  Tr.  49. 

8  27  Howell's  St.  Tr.  675. 

11 


*  11  INTRODUCTION. 

by  loyal  bishops  and  privy  councillors  before  they  were  allowed  to  go  to 
the  official  press.  In  1580  tlie  Star  Chamber  enacted  that  all  books  should 
be  read  over  in  manuscript,  and  licensed  by  cither  the  Archbishop  of 
Canterbury  or  the  Bisliop  of  London,  save  law  books,  which  were  to  be 
read  and  licensed  by  the  Clnef  Justice  of  either  Bench  or  the  Lord  Chief 
Baron  (a  practice  which  continued  down  to  the  middle  of  the  last  century ; 
see  the  prefaces  to  Burrows'  and  Douglas'  Reports).  Subsequently  the  Mas- 
ter of  the  Revels  usurped  the  right  of  revising  poems  and  plays,  and  the 
Vice-Chancellors  of  the  Universities  were  allowed  for  convenience  sake  to 
license  books  to  be  printed  at  the  University  presses.  It  was  soon  found 
impossible  to  restrict  the  number  of  printing  presses  in  the  country,  and 
the  Government  therefore  insisted  all  the  more  vehemently  that  no  book 
should  be  published  without  a  previous  licence.  By  the  Star  Chamber 
decree  dated  July  11th,  1637,  all  printed  books  were  required  to  be  submit- 
ted to  the  licensers  and  entered  upon  the  registers  of  the  Stationers'  Com- 
pany before  they  could  be  published  ;  if  this  was  not  done,  the  printer  was 
to  be  fined,  and  for  ever  disabled  from  exercising  the  art  of  printing,  and 
his  press  and  all  copies  of  the  unlicensed  book  forfeited  to  the  Crown.  The 
old  word  " Ivipri77iatu7'"  =  "  let  it  he  2)i'inted,"  was  still  used  to  denote 
the  consent  of  the  licenser  to  its  publication.  After  the  abolition  of  the 
Star  Chamber,  the  Long  Parliament  issued  two  orders,  March  9th,  1642, 
and  June  14th,  1643,  very  similar  in  effect  to  the  decree  of  the  Star  Cham- 
ber last  mentioned.  Against  these  orders  Milton  published  his  noble  but 
ineffectual  protest,  the  "  Areopagitica  "  (November  24th,  1644).  The  cen- 
sorship of  the  press  continued  in  England  till  1695,  and  then  its  abolition 
was  rather  accidental  than  otherwise.^ 

(iii.)  A  third  plan  is  to  allow  any  book  to  be  printed  and  published 
without  any  supervision  or  licence ;  but  as  soon  as  the  attention  of  the 
Government  is  called  to  its  harmful  tendencies,  to  seize  all  the  stock  at  the 
publishers  and  booksellers,  and  prevent  the  publisher  from  issuing  any 
further  copies.  The  Lord  Lieutenant  was  till  the  year  1875  em- 
*  12  powered  to  do  this  in  Ireland,  should  any  work  appear  to  him  *  sedi- 
tious. Magistrates  in  England  may  deal  thus  with  books  proved  to 
be  obscene  by  virtue  of  Lord  Campbell's  Act.^  The  Court  of  Chancery 
and  the  House  of  Lords  have  occasionally  by  injunction  forbidden  the 
further  publication  of  libels  which  they  deemed  contempts  of  court.  But 
in  all  other  cases,  neither  the  Crov/n  nor  any  court  of  law  can  restrain  the 
indiscriminate  sale  or  distribution  of  any  work,  however  pernicious  they 
may  deem  it  to  be. 

^  See  Macaulay's  "History  of  England,"  c.  xix.,  vol.  iii.,   pp.   399-405  ;  13  &  14 
Car.  II.,  c.  33  ;  Proclamation  of  May  17tli,  1680  ;  1  Jac.  II.,  c.  17. 
2  20  &  21  Vict,  c.  83. 

12 


INTRODUCTION.  *  12 

(iv.)  Our  present  law  permits  any  one  to  say,  write,  and  publish  what 
he  pleases ;  but  if  he  make  a  bad  use  of  this  liberty,  he  must  be  punished. 
If  he  unjustly  attack  an  individual,  the  person  defamed  may  sue  for 
damages ;  if,  on  the  other  hand,  the  words  be  written  or  printed,  or  if 
treason  or  immorality  be  thereby  inculcated,  the  offender  can  be  tried  for 
the  misdemeanor  either  by  information  or  indictment.  In  order  that  the 
criminal  might  be  easily  detected,  it  was  enacted  in  1712  that  no  person, 
under  a  penalty  of  £20,  should  sell  or  expose  for  sale  any  pamphlet  with- 
out the  name  and  place  of  abode  of  some  known  person  by  or  for  whom  it 
was  printed  or  published,  Avritten  or  printed  thereon.^  A  similar  enact- 
ment as  to  newspapers,  6  &  7  Will.  IV.,  c  76,  was  also  repealed  by  the 
32  &  33  Vict.,  c.  24.  And  now  every  paper  or  book  which  is  meant  to 
be  published  or  dispersed  must  bear  on  it  the  name  and  address  of  the 
printer;^  and  the  printer  must  for  six  calendar  months  carefully  preserve 
at  least  one  copy  of  each  paper  printed  by  him,  and  write  thereon  the 
name  and  address  of  the  person  Avho  employed  and  paid  him  to  print  it.* 
Newspapers  were  indeed  formerly  regarded  with  great  jealousy  by  the  Gov- 
ernment, and  subjected  to  heavy  duties.  Under  Charles  II.  and  James  II. 
the  London  Gazette  (a  small  sheet  appearing  twice  a  week,  every  Monday 
and  Thursday)  was  the  only  paper  permitted  to  publish  poHtical  news. 
Even  their  size  was  regulated  by  statute.  The  6  Geo.  IV.,  c.  119,  first 
allowed  newspapers  to  be  printed  on  paper  of  any  size.  Moreover,  till  the 
18  Vict.,  c.  27,  they  had  to  be  printed  on  stamped  paper.  But  in  spite  of 
all  such  petty  restrictions,  our  press  has  been,  ever  since  the  passing  of 
Fox's  Libel  Act,  32  Geo.  III.,  c.  60,  the  freest  in  the  world. 

*  The  only  vestige  remaining  of  such  censorship  is  the  *  13 
control  of  the  Lord  Chamberlain  over  plays.  By  the 
Theatres  Regulation  Act,  1843,*  s.  14,  it  is  enacted  that  it  shall  be 
lawful  for  the  Lord  Chamberlain  for  the  time  being,  whenever  he 
shall  be  of  opinion  that  it  is  fitting  for  the  preservation  of  good 
manners,  decorum,  or  of  the  public  peace  so  to  do,  to  forbid  the 
acting  or  presenting  any  stage  play,  or  any  act,  scene,  or  part 
thereof,  or  any  prologue  or  epilogue,  or  any  part  thereof,  any- 
where in  Great  Britain,  or  in  such  theatres  as  he  shall  specify,  and 
either  absolutely  or  for  such  time  as  he  shall  think  fit. 

No  injunction  can  be  obtained  to  prohibit  the  publication  or 

1  10  Anne,  c.  19,  s.  113,  repealed  in  1871  by  the  33  &  34  Vict.,  c.  99. 

2  2  &  3  Vict.,  c.  12,  s.  2. 

8  39  Geo.  III.,  c.  79,  s.  29.  «  6  &  7  Vict.  c.  68. 

13 


*  13  INTRODUCTION. 

republication  of  any  libel,  or  to  restrain  its  sale.'  (a)  The  matter 
must  first  go  before  a  jury,  who  are  to  decide  whether  the  words 
complained  of  are  libellous  or  not.  The  Crown  has  no  authority 
to  restrain  the  press  ;  and  the  courts,  wliether  of  Law  or  of  Equity, 
cannot,  till  after  verdict,  issue  any  injunction  in  respect  of  any 
libels,  save  such  as  are  contempts  of  Court.^ 

There  has  been  a  strange  conflict  of  authority  on  this  point.  As  long 
ago  as  1742,  it  was  clearly  laid  down  in  Roach  v.  Read  and  another^ 
that  Courts  of  Equity  had  no  jurisdiction  over  actions  of  libel  and  slander, 
whether  public  or  private,  except  as  contempts  of  their  own  Courts.  The 
Courts  of  Common  Law  had  at  that  time  no  power  to  grant  injunctions  at  all. 
No  doubt  in  the  early  days  of  arbitrary  prerogative  the  Court  of  Star  Cham- 
ber occasionally  restrained  the  publication  of  works  alleged  to  be  seditious. 
But  Scroggs  was  impeached  for  attempting  to  introduce  the  practice  into  the 
King's  Bench.  However,  in  Du  Bost  v.  Beresford,*  Lord  Ellenborough,  in 
deciding  that  a  libellous  picture  could  have  no  legal  value  as  a  work 

*  14     of  art,  said  :    "  Upon  an  application  to  the  Lord  *  Chancellor,  he 

would  have  granted  an  injunction  against  its  exhibition,  and  the 
plaintiff  was  both  civilly  and  criminally  liable  for  having  exhibited  it."  This, 
however,  was  a  mere  obiter  dictum,  and  is  said  to  have  greatly  surprised  all 
practitioners  in  the  Courts  of  Equity  ;  it  was  expressly  disavowed  by  Lord 
Campbell  in  the  case  of  the  Emperor  of  Austria  v.  Day  and  Kossuth.® 
It  is,  however,  stated  in  the  note  to  Southey  v.  Sherwood  ^  that  in  a  case 
of  Burnett  v.  Chetwood,  Lord  Chancellor  Parker  granted  an  injunction 
to  restrain  the  printmg  and  publishing  of  a  translation  into  English  of  a 
book  written  in  Latin,  and  which  he  thought  had  better  remain  in  Latin ; 

»  Prudential  Assurance  Co.  v.  Knott,  L.  R.  10  Ch.  142  ;   44  L.  J.  Ch.  192  ;   23 
"VV.  R.  249  ;  31  L.  T.  866. 

2  Saxhy  v.  Easterbrook,  3  C.  P.  D.  339  ;  27  W.  R.  188. 

8  2  Atk.  469  ;  2  Dick.  794.  *  2  Camp.  512. 

6  3  De  G.  F.  &  J.  217,  239  ;  7  Jur.  N.  S.  639  ;  30  L.  J.  Ch.  690. 

«  2  Mer.  p.  441. 

(a)  Singer    Manuf.    Co.    v.    Domestic  Co.  v.  Riley,  L.  R.  6  Eq.  551  ;   Dixon  v. 

■Sewing  Machine  Co.,  49  Ga.  70  ;  Boston  Holden,  L.  R.  7  Eq.  488  ;  Rollins  v.  Hinks, 

Diatite  Co.   v.  Florence  Manuf.   Co.,  114  L.    R.    13  Eq.   355.      Injunction   against 

Mass.  69,  citing  Huggonson's  Case,  2  Atk.  violating  a  trade-mark  was  distinguished 

469,  488  ;    Gee    v.   Pritchard,   2   Swanst.  in  the   Massachusetts  case  as  resting  on 

402,  413  ;  Seeley  v.   Fisher,  11   Sim.  581,  property  in  the  same  and  an  unlawful  use 

583  ;  Fleming  v.  Newton,  1  H.  L.  Cas.  363,  of  or  attempt  to  use  it.    The  want  of  juris- 

371  ;    Austria  v.  Day,  3  De  G.  F.   &  J.  diction  to  enjoin  applies  also  to  slander. 

217,  238  ;  Mulkern  v.  Ward,  L.  R.  13  Eq.  See  the  two  cases  first  cited. 
619,   and   denying   Springhead   Spinning 

14 


IKTRODUCTION.  *  14 

*'  he  looked  upon  it,"  he  said,  "  that  this  Court  had  a  superintendency  over 
all  books,  and  might  in  a  summary  way  restrain  the  printing  or  publishing 
[of]  any  that  contained  reflections  on  religion  or  morality."  The  application 
was  apparently  made  by  an  executor  in  order  to  protect  his  copyright  in 
a  book  written  by  his  testator  ;  but  the  whole  report  is  of  very  doubtful 
authority,  being  merely  a  note  of  the  case  extracted  from  a  manuscript 
volume  of  uncertain  authorship.^  In  Clark  v.  Freeman'^  Lord  Lang- 
dale,  M.R.,  laid  it  down  most  clearly  that  a  Court  of  Equity  would  not 
interfere  by  injunction  to  prevent  the  publication  of  a  libel,  saying  that  if 
it  did  so  it  would  be  "  reviving  the  criminal  jurisdiction  of  the  Star  Cham- 
ber." And  in  Fleming  v,  Newton  ^  Lord  Cottenham  was  most  distinctly 
of  opinion  that,  whatever  niceties  might  be  shown  to  exist  in  Scotch  law, 
such  an  interference  with  the  liberty  of  the  press  was  contrary  to  every 
principle  of  English  law.  See  also  the  observations  of  Lord  Eldon  in  Gee 
V.  Pritchard,*  and  of  Sir  L.  Shadwell  in  Martin  v.  Wright.^ 

In  this  state  of  the  authorities,  Malins,  V.C.,  in  Springhead  Spinning  Co. 
V.  Riley,^  and  Dixon  v.  Holden,'''  introduced  an  exception  to  the  rule  ;  for  he 
decided  that  a  Court  of  Equity  had  jurisdiction  to  restrain  the  publication  of 
any  document,  which  tended  to  the  destruction  or  deterioration  of  the 
plaintiff's  property,  or  *  even  of  the  plaintiff's  professional  reputa-  *  15 
tion  by  which  property  is  acquired.  This  decision  professed  to  fol- 
low that  of  Lord  Langdale,  M.R.,  in  Routh  v.  Websterj^  in  which  case  an 
injunction  was  granted  to  restrain,  not  indeed  a  libel,  for  there  Avas  none, 
but  an  improper  and  unauthorized  use  by  the  defendants  of  the  plaintiff's 
name  as  a  trustee  of  the  defendant's  joint-stock  company.  In  a  subsequent 
case,  Mulkern  v.  AVard,^  Wickens,  V.C,  commented  very  strongly  on 
the  decision  in  Dixon  v.  Holden,  as  introducing  a  "  wholly  new  "  rule,  and 
one  contrary  to  the  previous  decisions  ;  and  refused  the  injunction  therein 
prayed  for,  as  a  violation  of  the  liberty  of  the  press,  i** 

All  doubts  on  the  point  were  finally  set  at  rest  by  the  Court  of  Appeal 
in  Prudential  Assurance  Co.  v.  Knott,ii  where  a  very  strong  Court  (Lord 
Cairns,  L.C.,  and  James  and  Hellish,  L.JJ.),  decided  that  the  Court  of 

1  See  also  Gumey  v.  Longman,  13  Ves.  493,  507  ;  Bathurst  v.  Kearsley,  ib.  494. 

2  11  Bear.  112  ;  17  L.  J.  Ch.  142  ;  12  Jur.  149. 

8  1  H.  L.  C.  363.  4  2  Swan.  413.  ^  q  sim.  297. 

6  L.  R.  6  Eq.  551  ;  37  L.  J.  Ch.  889  ;  16  W.  R.  1138  ;  19  L.  T.  64. 

7  L.  R.  7  Eq.  488  ;  17  W.  R.  482  ;  20  L.  T.  357. 

8  10  Beav.  561. 

9  L.  R.  13  Eq.  619  ;  41  L.  J.  Ch.  464  ;  26  L.  T.  831. 

10  See  also  James  v.  James,  L.  R.  13  Eq.  421  ;  41  L.  J.  Ch.  253  ;  26  L.  T.  568  ; 
Clover  V.  Royden,  L.  R.  17  Eq.  190  ;  43  L.  J.  Ch.  665  ;  22  W.  R.  254  ;  29  L.  T. 
639  ;  and  the  American  cases  of  Brandreth  v.  Lance,  8  Paige  24  ;  and  Hoyt  v.  Mc- 
Kenzie,  3  Barb.  Ch.  R.  320. 

11  L.  R.  10  Ch.  142  ;  44  L.  J.  Ch.  192  ;  23  W.  R.  249  ;  31  L.  T.  866. 

15 


*  15  INTRODUCTION. 

Chancery  has  no  jurisdiction  to  restrain  the  publication  of  a  libel  as  such, 
even  if  it  is  injurious  to  property  ;  and  expressly  overruled  Dixon  v.  Holdeii 
and  Springhead  Spinning  Co.  v.  Eiley.  This  decision  was  followed  by  the 
Court  of  Appeal  in  Fisher  and  Co.  v.  Apollinaris  Co.,^  and  in  Ireland 
in  Hammersmith  Skating  Eink  Co.  v.  Dublin  Skating  Eink  Co.^  Vice- 
Chancellor  Malins,  however,  appears  to  remain  of  the  same  opinion  still ; 
for  in  Thorley's  Cattle  Food  Co.  v.  Massam  ^  he  decided  that  the  decision 
of  the  Court  of  Appeal  was  in  some  way  controlled  or  overruled  by  sub-s. 
8  of  s.  25  of  the  Judicature  Act,  1873,  which  had  come  into  force  in  the 
meantime.     But  it  has  since  been  most  clearly  laid  down  by  James,  L.J., 

that  that  sub-section  in  no  way  alters  the  principles  on  which  a 
16  *      Court  of  Equity  should  act  in  granting  injunctions.*     *  And  Lord 

Coleridge,  C.J.,  appears  to  be  of  the  same  opinion.^  The  decision 
of  ^Malins,  V.C.,  on  the  interlocutory  application  in  Thorley's  Cattle  Food 
Co.  V.  Massam,  must  therefore  be  considered  to  be  overruled,  as  well  as  his 
previous  decision  in  Dixon  v.  Holden ;  and  the  Master  of  the  Eolls  has, 
according  to  Lindley,  J.,^  refused  to  follow  it  (probably  in  Hinrichs  v. 
Berndes).''' 

But  these  decisions  in  no  way  interfere  with  what  is  obviously  quite  a 
different  matter  —  the  right  of  the  plaintiff  to  claim  an  injunction  on  his 
■writ  in  addition  to  damages,  such  injunction  to  be  granted  by  the  judge 
only  after  the  jury  have  found  the  publication  complained  of  to  be  a  libel. 
Libel  or  no  libel  is  pre-eminently  a  question  for  a  jury,  but  after  they  have 
once  decided  it,  the  judge  may,  if  he  is  of  opinion  that  any  repetition  of  the 
libel  would  be  injurious  to  the  plaintiff's  property,  grant  an  injunction 
restraining  any  repetition  thereof.^ 

As  to  Avhat  libels  amount  to  contempt  of  Court,  see  post,  c.  XVIL, 
Seditious  Libels. 

1  L.  R.  10  Ch.  297  ;  44  L.  J.  Ch.  500  ;  23  W.  R.  460  ;  32  L.  T.  628. 

2  10  Ir.  R.  Eq.  235.  »  q  ch.  D.  582  ;  46  L.  J.  Ch.  713. 

*  Day  V.  Brownrigg,  10  Ch.  D.  307  ;  48  L.  J.  Ch.  173  ;  27  W.  R.  217  ;  39  L.  T. 
226,  553  ;  Gaskin  v.  Balls,  13  Ch.  D.  324  ;  28  W.  R.  552. 

5  3  C.  P.  D.  343.  6  3  c.  P.  D.  342. 

7  Weekly  Notes  for  1878,  p.  11. 

8  Saxby  v.  Easterbrook,  3  C.  P.  D.  339  ;  27  W.  R.  188.  Thorley's  Cattle  Food 
Co.  V.  Massam,  28  W.  R.  295  ;  41  L.  T.  542  ;  (C.  A.)  14  Ch.  D.  763  ;  28  W.  R.  966  ; 

42  L.  T.  851  ;  Thomas  v.  Williams,  14  Ch.  D.  864  ;  49  L.  J.  Ch.  605  ;  28  W.  R.  983  ; 

43  L.  T.  91.  See  also  the  remarks  of  Lord  Langdale,  M.R.,  in  Clark  v.  Freeman,  11 
Beav.  117,  8  ;  and  of  the  present  Master  of  the  Rolls  in  Hinrichs  v.  Berndes,  Weekly 
Notes  for  1878,  p.  11. 

16 


CHAPTER  11. 

DEFAMATORY  WORDS. 

Words  which  produce  any  appreciable  injury  to  the  reputa- 
tion of  another  are  called  Defamatory. 

Diffamare  est  in  mala  famd  ponere  (Bartol).  The  question  in 
each  case  therefore  is :  Has  the  reputation  of  this  individual 
plaintiff  been  appreciably  impaired  in  consequence  of  the  words 
employed  by  the  defendant  ?  No  general  rule  can  be  laid  down 
stating  absolutely  and  beforehand  what  words  are  defamatory 
and  what  not.  Words  which  would  seriously  injure  A.'s  reputa- 
tion mio-ht  do  B.'s  no  harm.  Each  case  must  be  decided  on  its 
own  facts. 

Defamation  was  formerly  an  ecclesiastical  offence,  cognizable  only  in  the 
spiritual  court ;  and  then  defamatory  words  would  be  such  as  the  ecclesi- 
astical court  would  punish.  But  all  such  suits  were  abolished  by  the  18 
&  19  Vict.  c.  41.  So  now  it  is  convenient  to  use  the  word  "Defamation" 
as  a  general  term  embracing  both  "  Slander"  and  "  Libel." 

If  in  any  given  case  the  words  employed  by  the  defendant 
have  appreciably  injured  the  plaintiff's  reputation,  then  the  plain- 
tiff has  suffered  an  injuria,  which  is  actionable  without  proof  of 
any  damage.  Every  man  has  a  right  to  be  protected  from  def- 
amation, as  much  as  from  assault  or  bodily  harm.  "  His  reputa- 
tion is  his  property,  and  if  possible  more  valuable  than 
other  property  ;  "  ^  and  just  as  *  any  invasion  of  a  man's  *  18 
property  is  actionable  without  proof  of  any  pecuniary  loss, 
so  is  any  disparagement  of  his  reputation.  Every  man  has  a 
right  to  his  good  name,  a  right  which  no  one  may  violate.  And 
such  a  right  is  a  real  right ;  all  men  are  bound  to  forbear  from 
all  such  imputations  against  him  as  would  amount  to  injuries  to 
his  reputation.2     "  It  was  the  rule  of  Holt,  C.  J.,  to  make  words 

1  Per  Malins,  V.C,  in  Dixon  v.  Holden,  L.  R.  7  Eq.  492  ;  17  W.  R.  482  ;  20  L. 
T.  357. 

■■'  2  Austin's  Jurisprudence,  p.  51. 

2  17 


28  *  DEFAMATORY   WORDS. 

actionable  whenever  they  sound  to  the  disreputation  of  the  person 
of  whom  they  were  spoken,  and  this  was  also  Hale's  and  Twis- 
den's  rule,  and  I  think  it  a  very  good  rule."  ^ 

Whenever  these  words  clearly  "  sound  to  the  disreputation  " 
of  the  plaintiff,  there  is  no  need  of  further  proof,  they  are  defama- 
tory on  the  face  of  them,  and  actionable  per  se.  The  injury  to 
the  reputation  is  the  gist  of  the  action,  and  wherever  that  is 
clear,  there  is  no  need  to  inquire  whether  there  is  any  injury  to 
the  pocket  as  well.  But  where  it  is  by  no  means  clear  from  the 
words  themselves  that  they  must  have  injured  the  plaintiff's 
reputation,  there  the  Court  requires  proof  of  some  special  damage 
to  show  that  as  a  matter  of  fact  the  words  have  in  this  case 
impaired  the  plaintiff's  good  name.  Proof  of  this  kind  is,  as  we 
have  seen,  required  more  frequently  in  actions  of  slander  than  of 
libeL  Words  which  are  merely  uncivil,  words  of  idle  abuse,  aie 
clearly  no  ground  for  an  action,  miless  it  can  be  shown  that  in 
fact  some  appreciable  damage  to  the  plaintiff  has  followed  from 
their  use.     De  minimis  non  curat  lex. 

]\Ir.  Townshend,  the  author  of  a  learned  American  treatise  on  Slander 
and  Libel,  appears  to  me  to  fall  into  an  error  on  this  point.  He  devotes  a 
wliole  chapter  to  maintaining  "  that  pecuniary  loss  to  the  plaintiff 
*  19  is  the  gist  of  the  action  for  slander  *  or  libel.  If  the  language 
published  has  not  occasioned  the  plaintiff  pecuniary  loss  (actual  or 
implied),  then  no  action  can  be  maintained."  *(«)  Surely  he  might  as  well 
contend  that  the  gist  of  an  action  of  assault  and  battery  was  the  doctor's 
hill  the  plaintiff  had  to  pay.  Is  it  not  clear  that  injury  to  the  plaintiff's 
reputation  is  the  gist  of  the  action,  and  special  damage  is  but  evidence  of 
that  injury  ]  Every  man  has  an  absolute  right  to  have  his  person,  his 
property,  and  his  reputation  preserved  inviolate.  Bacon  commences  his 
tract  on  the  Use  of  the  Law  by  this  express  declaration  :  —  "  The  Use  of 
the  Law  consisteth  principally  in  these  three  things  : 

•'  1 .  To  secure  men's  persons  from  death  and  violence. 

"  2.  To  dispose  the  property  of  their  goods  and  lands. 

1  Per  Fortescue,  J.,  in  Button  v.  Heyward,  8  Mod.  24,  referring  perhaps  to  Baker 
V.  Pierce,  6  Mod.  24.  ^  C.  iv.  §  57. 

(a)  The  question  raised  hy  Mr.  Town-  office  were  one  of  emolument.  Thisappoars 
shend  is  not  a  barren  one.  If  his  view  be  to  be  in  the  face  of  the  settled  English  doc- 
correct,  no  person  holding  an  office  of  mere  trine  concerning  words  spoken  of  justices  of 
honor  or  trust  can  maintain  an  action  for  the  peace,  barristers,  and  others  whose  voca- 
words  touching  him  solely  therein,  though  tion  is  merely  honorary  in  law.  See  post, 
the  same  words  would  be  actionable  if  the  pp.  64,  70,  74. 

18 


GIST   OF   THE   ACTION.  *  19 

"  3.  For  preservation  of  their  good  names  from  shame  and  infamy 

"  If  any  man  beat,  wound  or  maime  another,  or  give  false  scandalous 
words  that  may  touch  his  credit,  the  Law  giveth  thereupon  an  action  of 
the  case,  for  the  slander  of  his  good  name  ;  and  an  action  of  Battery,  or  an 
appeale  of  Maime,  by  which  recompence  shall  be  recovered,  to  the  value  of 
the  hurt,  dammage  or  danger."  Mr.  Townshend  would  reduce  Bacon's 
three  uses  of  the  law  to  two ;  for  he  implies  that  the  law  will  not  redress 
a  mere  injury  to  the  reputation  unless  it  be  accompanied  by  an  injury  to 
the  person  or  the  property  of  the  plaintiff.  Bacon  merely  requires  that 
the  words  should  "  touch  the  plaintiff's  credit ; "  where  it  is  not  obvious 
that  the  words  must  have  that  result,  then  the  plaintiff  must  bring  evi- 
dence of  some  material  loss  which  will  show  that  his  credit  has  in  fact 
been  touched. 

And  how  does  Mr.  Townshend  get  over  the  fact  that  in  nine  cases  of 
defamation  out  of  every  ten  the  plaintiff  is  never  called  on  to  prove  that 
"pecuniary  loss"  which  he  maintains  to  be  the  gist  of  the  action  1  He 
has  recourse  to  that  time-honored  expedient,  a  legal  fiction.  He  insists 
"that,  where  the  law  does  protect  reputation,  it  does  so  indirectly,  by 
means  of  a  fiction  —  an  assumption  of  pecuniary  loss.  In  theory,  the 
action  for  slander  or  libel  is  always  for  the  pecuniary  injury,  and  not  for 
tlie  injury  to  the  reputation.  There  are  many  such  fictions  introduced 
into  the  administration  of  the  law,  by  means  of  which,  without 
changing  the  rule  of  law,  the  law  is,  in  effect,  changed."  *  That  *  20 
there  be  many  such  fictions  is  surely  no  ground  for  increasing  their 
number  by  inventing  a  fresh  one.  And  what  an  absurdity  such  a  fiction 
would  be  !  If  I  assert  that  the  Prime  Minister  stole  a  penny  bun,  the  law 
will  solemnly  presume,  says  Mr.  Townshend,  that  the  Prime  IMinister 
thereupon  instantly  incurred  a  money  loss  of,  say,  £50.  And  how  capricious 
is  this  fiction.  For  had  I  been  content  with  calling  the  Prime  Minister  a 
liar,  the  law  would  not  presume  the  loss  of  a  farthing.  Such  a  fiction  also 
is  opposed  to  the  history  of  our  law ;  for  Ave  know  that  in  Anglo-Saxon 
and  in  Norman  times  an  exaggerated  value  was  set  on  a  man's  reputation. 
Evidence  of  a  prisoner's  good  character  would  insure  his  accpiittal  of  any 
crime.  In  short,  all  that  is  required  by  our  common  law  is  that  the  injury 
to  a  man's  reputation  should  be  appreciable,  i.e.,  capable  of  being  assessed 
by  a  jury.  And  so  no  action  lies  for  mere  words  of  vulgar  abuse,  or  for 
•words  which  have  inflicted  no  substantial  injury  on  the  plaintifl^s  reputa- 
tion, on  the  principle  De  minimis  non  carat  lex. 

It  is  the  more  strange  that  Mr.  Townshend  should  have  made  such  an 
error  ;  because  the  language  of  the  Judges  in  his  own  country  is  clear  and 
express.  Thus  the  Court  of  Appeals  in  New  York  lays  down  the  law  most 
distinctly  in  the  following  words  :  "  The  action  for  slander  is  given  by  the 
law  as  a  remedy  for  '  injuries  affecting  a  man's  reputation  or  good  name  by 

19 


*  20  defa:*iatory  words. 

malicious,  scandalous,  and  slanderous  words  tending  to  his  damage  and 
derogation.'  ^  It  is  injuries  affecting  the  reputation  only  which  are  the 
subject  of  the  action."  And  then,  after  referring  to  some  examples  of 
special  damage,  tlie  Court  continues  :  "  These  instances  are  sufficient  to 
illustrate  the  kind  of  special  damage  that  must  result  from  defamatory 
words  not  otherwise  actionable  to  make  them  so  ;  they  are  damages  pro- 
duced by,  or  through,  impairing  the  reputation The  words  must  be 

defamatory  in  their  nature  ;  and  must  in  fact  disparage  the  character ;  and 
this  disparagement  must  be  evidenced  by  some  positive  loss  arising  there- 
from directly  and  legitimately  as  a  fair  and  natural  result The 

special  damages  must  flow  from  impaired  reputation The  loss  of 

character  must  be  a  substantive  loss,  one  which  has  actually  taken 

*  21      place."  "^   It  is  clear  from  these  expressions  and  also  from  *  the  judg- 

ment in  Wilson  v.  Goit,  in  the  same  volume,  p.  443,  that  the  Court 
of  Appeals  in  New  York  considered  that  the  loss  of  reputation  was  the  gist 
of  the  action,  and  that  special  damage  is  but  evidence  of  loss  of  reputa- 
tion, and  is  necessary  only  where  without  some  such  evidence  it  would  not 
be  clear  that  the  plaintiff's  reputation  had  in  fact  been  impaired. 


PART  I. 


LIBEL. 


In  cases  of  libel,  any  words  will  be  presumed  defamatory  which 
expose  the  plaintiff  to  hatred,  contempt,  ridicule,  or  obloquy, 
which  tend  to  injure  him  in  his  profession  or  trade,  or  cause  him 
to  be  shunned  or  avoided  by  his  neighbors. 

"  Everything,  printed  or  written,  which  reflects  on  the  char- 
acter of  another,  and  is  published  without  lawful  justification 
or  excuse,  is  a  libel,  whatever  the  intention  may  have  been."^ 
The  words  need  not  necessarily  impute  disgraceful  conduct  to 
the  plaintiff;  it  is  suflBcient  if  they  render  him  contemptible  or 
ridiculous.* 

Any  written  words  are  defamatory  which  impute  to  the  plain- 

1  3  Bl.  Com.  123. 

2  Terwilliger  v.  Wands,  3  Smith  (17  N.  Y.  R.)  .'50,  63. 

8  Per  Parke,  B.,  in  O'Brien  v.  Clement,  15  M.  k  W.  435. 

*  Cropp  V.  Tilney,  3  Salk,  226  ;  Villers  v.  Monsley,  2  Wils.  403. 

20 


LIBEL. 


21 


tiff  that  he  has  been  guilty  of  any  crime,  fraud,  dishonesty,  im- 
morality, vice,  or  dishonorable  conduct,  or  has  been  accused  or 
suspected  of  any  such  misconduct;  or  which  suggest  that  the 
plaintiff  is  suffering  from  any  infectious  disorder ;  or  which  have 
a  tendency  to  injure  him  in  his  office,  profession,  calling,  or  trade. 
And  so  too  are  all  words  which  hold  the  plaintiff  up  to  contempt, 
hatred,  scorn,  or  ridicule,  and  which,  by  thus  engendering  an  evil 
opinion  of  him  in  the  minds  of  right-thinking  men,  tend  to  de- 
prive him  of  friendly  intercourse  and  society. 

*  A  libel  need  not  necessarily  be  in  writing  or  printing.      *  22 
Any  caricature  or  scandalous  printing,  or  effigy,  will  con- 
stitute a  libel.^     But  it  must  be  something  permanent  in  its  na- 
ture, not  fleeting,  as  are  spoken  words. 

It  appears  to  be  impossible  to  define  a  hbel  with  any  greater  precision 
or  lucidity.     I  proceed  at  once  therefore  to  give  instances,  (a) 


1  5  Eep.   1256;    Anon.    11    Mod.    99;   Austin  v.   Culpepper,  2  Show.  313;  Skin. 
123  ;  Jefferies  v.  Duncombe,  11  East,  226  ;  Du  Bost  v.  Beresford,  2  Camp.  511. 


(a)  The  following  definition  of  libel 
proposed  by  Mr.  Hamilton  in  People  v. 
Crosswell,  3  Johns.  Cas.  354,  is  often 
found  in  the  books  :  A  censorious  or 
ridiculing  writing,  picture,  or  sign,  made 
with  a  mischievous  and  malicious  intent, 
towards  government,  magistrates,  or  indi- 
viduals. Steele  v.  Southwick,  9  Johns. 
214  ;  Cooper  v.  Greeley,  1  Denio,  347  ; 
State  V.  Farley,  4  McCord,  317.  But  this 
is  somewhat  labored,  and  it  is  more  com- 
mon at  the  present  time  to  say  that  any 
false  writing,  print,  or  sign  likely  to  bring 
a  man  into  disgrace,  hatred,  ridicule,  or 
contempt,  is  a  libel.  Price  v.  Whitely, 
50  Mo.  439  ;  Nelson  v.  Musgrave,  10  Mo. 
648  ;  Atwill  v.  Mackintosh,  120  Mass. 
177  ;  Tillson  v.  Robbins,  68  Maine,  295  ; 
White  V.  Nichols,  3  How.  266  ;  Barr  v. 
Moore,  87  Penn.  St.  385  ;  Gabe  v.  JIc- 
Ginnis,  68  Ind.  538  ;  Cary  v.  Allen,  39 
Wis.  481  ;  Wilson  v.  Fitch,  41  Cal.  363  ; 
Adams  v.  Lawson,  17  Gratt.  250  ;  Geisler 
V.  Brown,  6  Neb.  254.  But  the  last  case 
is  a  remarkable  instance  of  a  disregard  of 
the  definition  adopted  in  it.  The  words 
of  the  definition  are  doubtless  to  be  taken 
in  the  disjunctive.  It  is  not  necessary  to 
charge  a  crime  though  the  particular  case 
would  not  amount  to  actionable  slander 


were  it  an  oral  publication.  Snyder  v. 
Fulton,  34  Md.  128  ;  Gabe  v.  JlcGinnis, 
siqjra ;  Johnson  v.  Stebbins,  5  Ind.  364  ; 
Sniawley  v.  Stark,  9  Ind.  386  ;  Steele  v. 
Southwick,  9  Johns.  214  ;  Tryon  v.  Even- 
ing News  Assoc,  39  Mich.  636  ;  Stow  v. 
Converse,  3  Conn.  325  ;  Commonwealth  v. 
Wright,  1  Cush.  46.  The  following  are 
examples  of  libellous  language  :  "  A 
drunkard,  a  cuckold,  and  a  tory."  Giles  v. 
State,  6  Ga.  276.  "  A  report  raised  by  A.  B. 
against  brother  C,  stating  that  he  made 
him  pay  a  note  twice,  and  proved  by  A.  B. 
to  be  false."  Shelton  v.  Nance,  7  B.  Mon. 
128.  "  B.  would  put  his  name  to  any- 
thing that  T.  would  request  him  to  sign 
that  would  prejudice  D.'s  cliaracter." 
Duncan  v.  Brown,  15  B.  ^lon.  186.  "He 
is  thought  no  more  of  than  a  horse  thief 
and  a  counterfeiter."  Nelson  v.  Mus- 
giave,  10  Mo.  648.  The  plaintiff  will 
not  sue  in  a  certain  county  "  because  he  is 
known  there."  Cooper  v.  Greeley,  1 
Denio,  347.  That  a  person  has  been  de- 
prived of  the  chief  ordinance  of  a  church 
to  which  he  belongs.  McCorckle  v.  Binns, 
5  Binn.  340.  Obituary  notice  of  a  living 
person.  McBride  v.  Ellis,  9  Rich.  313. 
"I  look  upon  him  as  a  rascal,  and  have 
watched  him  many  vears."     Williams  r. 

21 


*22  DEFAMATORY  WORDS. 


Illustrations. 

It  is  libellous  to  write  and  publish  of  a  man  that  he  is  — 

"an  infernal  villain,"  Bell  v.  Stone,  1  B.  &  P.  331 ; 

"an  impostor,"  Cooke  v.  Hughes,  R.  &  M.  112  ;  Campbell  v.  Spottiswoode,  3  B.  & 

S.  769  ;  32  L.  J.  Q.  B.  185  ;  9  Jur.  N.  S.  1069  ;  11  W.  R.  569  ;  8  L.  T.  201; 
"a  hypocrite,"  Thorley  v.  Lord  Kerry,  4  Taunt.  355  ;  3  Camp.  214  n. ; 
«'a  frozen  snake,"  Hoare  v.  Silverlock  (No.  1,  1848),  12  Q.  B.  624  ;  17  L.  J.  Q.  B, 

306  ;  12  Jur.  695; 
"  a  rogue  and  a  rascal,"  per  Gould,  J.,  in  Villers  v.  Monsley,  2  Wils.  403  ; 
"a  dishonest  man,"  per  cur.  in  Austin  v.  Culpepper,  Skin.  124  ;  2  Show.  314  ;  (a) 
"  a  mere  man  of  straw,"  Eaton  v.  Johns,  1  Dowl.  (N.  S.)  602  ; 
"an  itchy  old  toad,"  Villers  v.  Monsley,  2  Wils.  403  ; 

"a  desperate  adventurer,"  association  with  whom  "would  inevitably  cover"  gentle- 
men "with  ridicule  and  disrepute,"  Wakley  v.  Healey,  7  C.  B.  591  ;  18  L.  J. 

C.  P.  241  ; 
that  "he  grossly  insulted  two  ladies,"  Clement  v.  Chivis,  9  B.  &^C.  172  ;  4  M.  & 

E.  127  ; 
that  "he  is  untit  to  be  trusted  with  money,"  Cheese  v.  Scales,  10  M.  &  W.  488  ;  12 

L.  J.  Ex.  13;  6  Jur.  958; 
that  "he  is  insolvent  and  cannot  pay  his  debts,"  Metropolitan  Omnibus  Co.  v. 

Hawkins,  4  H.  &  N.  146  ;  28  L.  J.  Ex.  201  ;  5  Jur.  N.  S.  226  ;  7  W.  R.  265; 

32  L.  T.  (OldS.)  281  ; 
that  "he  was  once  in  difficulties,"  though  it  is  stated  that  such  difficulties  are  now 
at  an  end,  Cox  v.  Lee,  L.  R.  4  Ex.  284 ;  38  L.  J.  Ex.  219 ; 
*  23  *  that  he  is  "  the  most  artful  scoundrel  that  ever  existed,"  "is  in  every  per- 

son's debt,"  and  that  "  his  ruin  cannot  be  long  delayed,"  and  that  "he 

is  not  deserving  of  the  slightest  commiseration,"  Rutherford  v.  Evans,  6  Bing. 

451  ;  8  L.  J.  (Old  S.)  C.  P.  86  ; 

Karnes,  4  Humph.  9.  That  the  plaintiff  2  Eobt.  29  ;  s.  c.  3  Robt.  284.  "  A  re- 
has  put  in  circulation  a  false,  scandalous,  port  has  gone  abroad  through  S.  W.  that 
and  scurrilous  report.     Colby  v.  Reynolds,  R.  M.  had  a  load  of  falsely  packed  cotton  ; 

6  Vt.  489.  "  He  is  a  miserable  fellow,  and  which  is  false."  Woodburu  v.  Miller, 
it  is  impossible  for  a  newspaper  article  to  Cheves,  194. 

injure  him  ;  the  community  could  hardly  (a)  Dishonesty  charged  against  an  indi- 

despise  him  worse  than  now."     Brown  v.  vidual  in  his  business  is  clearly  actionable 

Remington,    7  Wis.    462.      "Refusing  to  jki-  sc.      Orr  v.  Skoheld,  56  Maine,  483; 

correct  G.  C.  as  a  witness,  when  I  believe  Fowles  v.  Bowen,    30  N.  Y.  20.     So  of  a 

he   knew   his   statement   was    not   true."  written  imputation  of  want  of  integrity  in 

Coombs  u   Rose,  8  Blackf-  155.     "  He  is  a  tradesman.     Platto  ?;.  Geilfuss,  47  Wis. 

a  fawning  .sycophant,  a  misrepresentative  491,    citing   a   series  of  Wisconsin   cases 

in  Congress,  and  a  grovelling  office-seeker  ;  from  Cramer  v.  Noonan,   4  Wis.  231   to 

he  has  abandoned  his  post  in  Congress  in  Kimball  v.  Fernandez,  41  Wis.  329.     But 

pursuit  of  an  office."    Thomas  z>.  Croswell,  it  was  held  in  Platto  v.  Geilfuss  that  it 

7  Johns.  264.  "  'Our  army  swore  terribly  was  no  libel  I'or  the  cashier  of  a  bank  to  in- 
in  Flanders,'  said  Uncle  Toby;  and  if  form  the  drawer  of  a  check  that  the  drawee, 
Toby  were  here  now  he  might  say  the  same  who  had  agreed  to  honor  the  same,  "pays 
of  some  modern  swearers.  The  man  at  no  attention  to  notices,"  though  the  check 
the  sign  of  the  Bible  is  no  slouch  at  had  not  been  presented  to  him  for  pay- 
swearing."  Steele  V.  Southwick,  9  Johns,  ment.  The  words  were  taken  as  referring 
214.     "  Blackmailing."    Edsall  v.  Brooks,  only  to  the  particular  check. 

22 


LIBEL.  *  23 

that  he  is  "  at  the  head  of  a  gang  of  swindlers,"  that  he  is  "  a  common  infonner, 
and  has  been  guilty  of  deceiving  and  defrauding  divers  persons  with  whom  he 
had  dealings,"  I'Anson  v.  Stuart,  1  T.  R.  748  ;  2  Smith's  L.  C,  6th  ed.  57 ; 
R.  V.  Saunders,  Sir  Thos.  Raym.  201  ;  (a) 

that  the  plaintiff  sought  admission  to  a  club  and  was  black-balled,  and  bolted  the 
next  morning  without  paying  his  debts,  O'Brien  v.  Clement,  16  M.  k  W.  159  ; 
16  L.  J.  Ex.  76  ;  4  D.  &  L.  343. 

So  it  is  libellous  to  write  and  publish  of  a  landlord  that  he  put  in  a  distress  in 
order  to  help  his  insolvent  tenant  to  defraud  his  creditors.  Haire  v. Wilson,  9  B.  &  C. 
643  ;  4  M.  &  R.  605. 

It  is  libellous  for  a  defendant  to  write  a  letter  charging  his  sister  with  having  un- 
necessarily made  him  a  party  to  a  Chancery  suit,  and  adding  "it  is  a  pleasure  to  her 
to  put  me  to  all  the  expense  she  can."  Fray  v.  Fray,  17  C.  B.  N.  S.  603  ;  34  L.  J. 
C.  P.  45  ;  10  Jur.  N.  S.  1153.  (b) 

It  is  libellous  to  write  of  a  lady  applying  for  relief  from  a  charitable  society,  that 
her  claims  are  unworthy,  and  that  she  spends  all  the  money  given  her  by  the  benevo- 
lent in  printing  circulars  filled  with  abuse  of  the  society's  secretary.  Hoare  v.  Silver- 
lock  (No.  1,  1848),  12  Q.  B.  624  ;  17  L.  J.  Q.  B.  306  ;  12  Jur.  695. 

To  state  in  writing  that  the  plaintiff  is  insane,  or  that  her  mind  is  affected,  is 
libellous,  if  false.     Morgan  v.  Lingen,  8  L.  T.  800.  (c) 

Ironical  praise  may  be  a  libel ;  e.g.,  calling  an  attornej'  "an  honest  lawyer."  Boy- 
dell  V.  Jones,  4  M.  &  W.  446  ;  7  Dowl.  210  ;  1  H.  &  H.  408  ;  R.  v.  Brown,  11  Mod. 
86  ;  Holt,  425  ;  Sir  Baptist  Hicks'  Case,  Hob.  215  ;  Poph.  139. 

It  is  libellous  to  impute  to  a  Presbyterian  "gross  intolerance"  in  not  allowing  his 
hearse  to  be  used  at  the  funeral  of  his  Roman  Catholic  servant.  Teacy  v.  McKenna, 
Ir.  R.  4  C.  L.  374. 

It  is  primd  facie  libellous  to  charge  the  plaintiff  with  ingratitude  even  though  the 
facts  on  which  the  charge  is  based  be  stated,  and  they  do  not  bear  it  out.  Cox  v.  Lee, 
L.  R.  4  Ex.  284  ;  38  L.  J.  Ex.  219. 

It  is  libellous  to  state  in  a  newspaper  of  a  young  nobleman  that  he  drove  over  a  lady 
and  killed  her  and  yet  attended  a  public  ball  that  very  evening  (although  this  only 
amounts  to  a  charge  of  unfeeling  conduct).  Churchill  v.  Hunt,  1  Chit.  480  ;  2  B.  & 
A.  6S5. 

It  is  libellous  to  write  and  publish  of  a  lady  of  high  rank  that  she  has  her  photo- 
graph taken  incessantly,  morning,  noon,  aud  night,  and  receives  a  commission  on  the 
sale  of  such  photographs.     R.  v.  Rosenberg,  Times  for  Oct.  27th,  28th,  1879. 

*  It  is  a  libel  to  impute  or  imply  that  a  grand  jury  have  found  a  true  bill  *  24 
against  the  plaintiff  for  any  crime.     Harvey  v.  French,  1  Cr.  &  M.  11. 

It  is  libellous  to  publish  a  highly  colored  account  of  judicial  proceedings,  mixed 
with  the  reporter's  own  observations  and  conclusions  upon  what  passed  in  Court,  con- 
taining an  insinuation  that  the  plaintiff  had  committed  perjury.  Stiles  v.  Nokes, 
7  East,  493  ;  same  case  sub  nomine  Carr  v.  Jones,  3  Smith,  491. 

It  is  libellous  to  write  and  publish  of  the  editor  of  a  paper  that  he  is  "a  convicted 
felon  "  and  "  a  felon  editor  ;  "  even  although  the  fact  is  that  he  was  convicted  of  felony, 

(a)  It  is  not  libellous  to  publish  in  a  {b)  So  to  charge  one  (though   a  for 

newspaper  that  the  plaintiff  has  in  answer  eigner)  with  attempting  to  evade  and  de 

to  an  action  set  up  a  ilefence  assumed  by  fraud  tlie  revenue  laws  of  the  Ignited  States, 

the  writer  and  regarded  by  those  addressed  Worthington  v.  Houghton,  109  Mass.  481 
as  odious,  the  defence  being  one  allowed  by  (c)  Southwick   v.    Stevens,   10   Johns, 

law.    Homer  v.  Engelhardt,  117  Mass.  539.  443. 

23 


24  DEFAlklATORY   WORDS. 

and  ixnderwent  a  term  of  imprisonment  with  hard  labor.  Leyman  v.  Latimer  and 
others,  3  Ex.  D.  15,  352  ;  46  L.  J.  Ex.  765  ;  47  L.  J.  Ex.  470 ;  25  W.  R.  751  ;  26  W. 
R.  305  ;  37  L.  T.  360,  819. 

It  is  libellous  to  write  about  the  plaintiff's  "defalcations."     Bmton  v.  Downes, 

1  F.  &  F.  668. 

It  is  libellous  to  write  and  publish  of  a  man  that  a  certain  notorious  prostitute  is 
"under  his  patronage  or  protection."     More  v.  Bennett  (1872),  48  N.  Y.  R.  (3  Sickel), 

472. 

Or  of  a  married  man  that  his  conduct  towards  his  wife  is  so  cruel  that  she  was 
compelled  to  summon  Mm  before  the  magistrates.     Hakewell  v.  Ingram,  2  C.  L.  Rep. 

(1854),  p.  1397. 

It  is  libellous  "  to  paint  a  man  playing  at  cudgels  with  his  wife."  Per  Lord  Holt, 
C.J.,  in  Anon.  11  Mod.  99  :  see  Du  Bost  v.  Beresford,  2  Camp.  511. 

It  is  a  libel  on  a  married  lady  to  assert  that  her  husband  is  petitioning  for  a  divorce 
from  her.     R.  v.  Rosenberg,  R.  v.  Head  &  Marks,  Times  fop  Oct.  27th,  28th,  1879. 

It  is  libellous  to  call  a  manufacturer  a  "  truekmaster,"  for  this  implies  that  he  has 
been  guilty  of  practices  in  contravention  of  the  Truck  Act.  Homer  v.  Taunton,  5  H. 
&  N.°661  ;  29  L.  J.  Ex.  318  ;  8  W.  R.  499  ;  2  L.  T.  512. 

It  is  libellous  to  charge  in  writing  a  man  with  having  cheated  at  dice  or  on  the  turf, 
although  all  "-ambling  and  horse-racing  transactions  are  illegal  or  at  least  void.  Gre- 
ville  u!  Chapman,  S^Q.  B.  731  ;  13  L.  J.  Q.  B.  172  ;  8  Jur.  189  ;  D.  &  M.  553  ; 
Yrisarri  v.  Clement,  3  Bing.  432  ;  11  Moore,  308  ;  2  C.  &  P.  223. 

It  is  libellous  to  call  a  man  a  "  black-leg"  or  a  "black-sheep."  But  there  should  be 
an  averment  that  these  words  mean  a  person  guilty  of  habitually  cheating  and  defraud- 
ing others.  McGregor  v.  Gregory,  11  M.  &  W.  287  ;  12  L.  J.  Ex.  204  ;  2  D.  N.  S. 
769  ;   O'Brien  v.   Clement,  16  M.  &  W.  166  ;  16  L.  J.  Ex.  77;  and  see  Barnett  v. 

Allen,  1  F.  &  F.  125  ;  27  L.  J.  Ex.  412  ;  4  Jur.  N.  S.  488  ;  3  H.  &  N.  376. 
*  25  *  ^t  is  libellous  to  write  and  publish  of  the  plaintiff  the  following  words : 

"  Digby  has  had  a  tolerable  run  of  luck.  He  keeps  a  well-spread  sideboard, 
but  I  always  consider  myself  in  a  family  hotel  when  my  legs  are  under  his  table,  for 
the  bill  is  sure  to  come  in  sooner  or  later,  though  I  rarely  dabble  in  the  mysteries  of 
ecarte  or  any  other  game.  The  fellow  is  as  deep  as  Crockford,  and  as  knowing  as  the 
Marquis.  I  do  dislike  this  leg-al  profession."  Digby  v.  Thompson  and  another,  4  B. 
&  Ad.  821  ;  1  N.  &  M.  485. 

It  is  libellous  to  write  and  publish  of  a  clergyman  that  he  poisoned  foxes  on  the 
estate  of  Sir  M.  S.,  in  a  fox-hunting  county,  and  had  been  hung  up  in  effigy  in  conse- 
quence of  such  "dastardly  behavior."  R.  v.  Cooper,  8  Q.  B.  533  ;  15  L.  J.  Q.  B. 
206;  Foulger  v.  Newcomb,  L.  R.  2  Ex,  327  ;  36  L.  J.  Ex.  169;  15  ^Y.  R.  1181; 
16  L.  T.  595. 

It  is  libellous  to  publish  in  a  newspaper  a  story  of  the  plaintiff  calculated  to  make 
him  ludicrous,  though  he  had  previously  told  the  same  story  of  himself.  Cook  v. 
Ward,  6  Bing.  409  ;  4  M.  &  P.  99. 

But  it  is  not  defamatory  to  write  of  another  that  he  is  "Man  Friday."  Forbes  v. 
King,  1  Dowl.  672  ;  2  L.  J.  Ex.  109.  For,  as  Lord  Denman,  C.J.,  observes  in  Hoare 
V.  SUverlock  (Xo.  1,  1848),  12  Q.  B.  626  ;  17  L.  J.  Q.  B.  308  :  "That  imputed  no 
Clime  at  all.  The  'Man  Friday,'  we  all  know,  was  a  very  respectable  man,  although  a 
black  man,  and  black  men  have  not  been  denounced  as  criminals  yet."  The  law  is 
otherwise  in  the  United  States.     King  v.  Wood,  1  N.  &  M.  (South  Car.)  184. 

Where  the  defendants  posted  up  in  a  public  club-room  the  following  notice  :  "The 
Rev.  J.  Robinson  and  Mr.  J.  K.,  inhabitants  of  this  town,  not  being  persons  that  the 

24 


LIBEL.  *  25 

proprietors  and  annual  subscribers  think  it  proper  to  associate  with,  are  excluded  this 
room  ; "  this  was  held  no  libel.     Robinson  v.  Jermyn,  1  Price,  11. 

It  is  not  libellous  to  publish  in  a  newspaper  that  the  plaintiff  has  sued  his  mother- 
in-law  in  the  County  Court.     Cox  v.  Cooper,  12  W.  R.  75  ;  9  L.  T.  329.  (a) 

The  following  words  are  no  libel  (in  their  obvious  and  natural  meaning  at  all 
events)  : — "Society  of  Guardians  for  the  Protection  of  Trade  against  Swindlers  and 
Sharpers.  I  am  directed  to  inform  you  that  the  persons  using  the  firm  of  Goldstein 
&  Co.  are  reported  to  this  Society  as  improper  to  be  proposed  to  be  balloted  for  as  mem- 
bers thereof."  The  judgment  would  have  been  otherwise,  had  there  been  an  averment 
that  it  was  the  custom  of  the  society  to  designate  swindlers  and  sharpers  by  the  term 
"improper  persons  to  be  members  of  this  society."  Goldstein  v.  Foss,  6  B.  &  C.  15-1 
(in  Ex.  Ch.) ;  4  Bing.  489  ;  2  C.  &  P.  252  ;  2  Y.  &  J.  146  ;  1  M.  &  P.  402. 

It  is  not  a  libel  to  write  and  publish  in  the  Times :  —  "  We  are  requested  to  state 
that  the  honorary  secretary  of  the  Tichborne  Defence  Fund  is  not  and  never  was  a 
captain  in  the  Royal  Artil)iery  as  he  has  been  erroneously  described,"  for  these  words 
do  not  impute  that  the  plamtiff  had  so  represented  himself.  Hunt  v.  Goodlake,  43  L. 
J.  C.  P.  54  ;  29  L.  T.  472. 

*  It  is  not  defamatory  to  write  and  publish  of  the  plaintiff  words  implying  *  26 
that  he  endeavored  to  suppress  dissension  and  discourage  sedition  in  Ireland ; 
for,  though  such  words  might  injure  him  in  the  minds  of  criminals  and  rebels,  they 
would  not  tend  to  lower  him  in  the  estimation  of  right-thinking  men.  Mawe  v. 
Pigott,  Ir.  R.  4  C.  L.  54.  And  see  Clay  v.  Roberts,  9  Jur.  N.  S.  580  ;  11  W.  R.  649  ; 
8  L.  T.  397. 

So  a  notice  sent  by  a  landlord  to  his  tenants:  —  "Messrs.  Henty  &  Sons  hereby 
give  notice  that  they  will  not  receive  in  payment  any  cheques  drawn  on  any  of  the 
branches  of  the  Capital  and  Counties  Bank,"  is  not  defamat^y.  Capital  &  Counties 
Bank  v.  Henty  &  Sons,  28  W.  R.  490  ;  42  L.  T.  314  ;  (C.  A.)  5  C.  P.  D.  514  ;  49  L. 
J.  C.  P.  830;  28  W.  R.  851. 

The  plaintiff"  was  a  certificated  art  master,  and  had  been  master  at  the  Walsall  Science 
and  Art  Institute.  His  engagement  there  ceased  in  June,  1874,  and  he  then  started, 
and  became  master  of,  another  school,  which  was  called  "The  Walsall  Government 
School  of  Art,"  and  was  opened  in  August.  In  September  the  following  advertisement 
appeared  in  the  Walsall  Observer,  signed  by  the  defendants  as  chairman,  treasurer,  and 
secretary  of  the  Institute  respectively  :  —  "  Walsall  Science  and  Art  Institute.  The 
public  are  informed  that  Mr.  Mulligan's  connection  with  the  institute  has  ceased,  and 
that  he  is  not  authorised  to  receive  subscriptions  on  its  behalf."  Held  that  this  was 
no  libel ;  and  that  no  innuendo  could  make  it  so  :  for  the  words  were  not  capable  of  a 
defamatory  meaning.  Mulligan  v.  Cole  and  others,  L.  R.  10  Q.  B.  549  ;  44  L.  J. 
Q.  B.  153  ;  33  L.  T.  12. 

If  the  words  are  not  reasonably  susceptible  of  any  defamatory 
meaning,  the  Court  will  hold  the  statement  of  claim  bad  on 
demurrer  ;  or  if  there  be  no  demurrer,  the  judge  at  the  trial  will 
stop  the  case.  But  if  the  words  are  reasonably  susceptible  of 
two  constructions,  the  one  an  innocent,  the  other  a  libellous 
construction,  then  it  is  a  question  for  the  jury  which  construc- 

(a)  But  it  has  been  thought  that  to  beats  her  child  over  the  head  with  a  club," 
publish  in  a  newspaper  of  a  woman  that  is  not  actionable  jxr  sc  ;  a  shocking  doc- 
she   is    "an   inhuman    stepmother.      She     trine.     Geisler  v.  Brown,  6  Neb.  254. 

25 


♦  26  DEFAIVIATOEY   WOKDS. 

tion  is  the  proper  one  ;  and  in  such  a  case  if  the  defendant 
demurs,  his  demurrer  will  be  overruled  ;i  if  the  judge  at  the 
trial  nonsuits,  the  Court  will  order  a  new  trial.^ 

The  jury  should  always  read  the  alleged  libel  through 

*  27      before  deciding  that  its  tendency  is  injurious.    A  word  *  at 

the  end  may  alter  the  whole  meaning.^  So  if  in  one  part 
appears  something  to  the  plaintiff's  discredit,  in  another  some- 
thing to  his  credit,  "  the  bane  "  and  "  the  antidote  "  should  be 
taken  together.  The  jury  should  not  dwell  on  isolated  passages, 
but  judge  of  the  publication  as  a  whole.* 


Illustration. 

The  report  of  a  trial  for  libel  contained  some  strong  observations  against  the  plain- 
tiff, which  were  indeed  a  necessary  part  of  the  report,  as  the  defendant  had  justified. 
At  the  end  it  was  stated  that  the  jury  found  a  verdict  for  the  plaintiff  for  £30.  Held 
that  the  publication  taken  as  a  whole  was  not  injurious  to  the  plaintiff.  Chalmers 
V.  Payne,  2  C.  M.  &  R.  156  ;  5  Tyrw.  706  ;  1  Gale,  69. 

It  is  libellous  to  impute  to  any  one  holding  an  office  that  he 
has  been  guilty  of  improper  conduct  in  that  office  or  has  been 
actuated  by  wicked,  corrupt,  or  selfish  motives,  or  is  incompetent 
for  the  post.  So  it  is  libellous  to  impute  to  a  member  of  any  of 
the  learned  professions  that  he  does  not  possess  the  technical 
knowledge  necessary  for  the  proper  practice  of  such  profession, 
or  that  he  has  been  guilty  of  professional  misconduct.  And  it  is 
not  necessary  (as  it  is  in  cases  of  slander,  jt?os^,  p.  69)  that  the 
person  libelled  should  at  the  time  still  hold  that  office  or  exercise 
that  profession  :  it  is  actionable  to  impute  past  misconduct  when 
in  office.^  («) 

1  Jenner  and  another  v.  A' Beckett,  L.  R.  7  Q.  B.  11  ;  41  L.  J.  Q.  B.  14  ;  20  W. 
R.  181 ;  2.T  L.  T.  464. 

2  Hart  and  another  v.  Wall,  2  C.  P.  D.  146  ;  46  L.  J.  C.  P.  227  ;  25  W.  R.  373. 
8  See  Hunt  v.  Algar,  6  C.  &  P.  245  ;  post,  p.  100. 

*  Per  Lord  Ellenborough,  C.J.,  in  R.  v.  Lambert  &  Perry,  2  Camp.  398  ;  31  How. 
St.  Tr.  340  ;  per  Lord  Kenyon,  C.  J.,  in  R.  v.  Reeves,  Peake  Add.  Cas.  84  ;  per  Fitz- 
gerald, J.,  in  R.  V.  Sullivan,  11  Cox  C.  C.  58. 

6  Parmiterv.  Coupland,  6  M.  &  W.  108  ;  Boydell  v.  Jones,  4  M.  &  W.  446  ;  War- 
man  V.  Hine,  1  Jur.  820  ;  Goodbume  v.  Bowman,  9  Bing.  532. 

(a)  See  Cramer  d.  Riggs,  17  "Wend.  209;  should  be  such  as  to  expose  the  individual 
Eviston  V,  Cramer,  47  Wis.  659.  But  to  disgrace  or  reproach  irrespective  of  his 
probably  in  such  a  case  the  imputation     late  office.     Post,  p.  69,  note. 

26 


LIBELS   OX   PKOFESSIONAL   JSIEN.  *  27 

In  cases  of  slander  there  is  a  curious  distinction  drawn  between 
offices  of  profit  merely  and  offices  of  honor,  such  as  that  *  of  justice  *  28 
of  the  peace ;  and  it  has  been  held  that  merely  to  impute  incom- 
petency or  want  of  ability  (as  distinct  from  a  want  of  integrity  or  impar- 
tiality) to  a  justice  of  the  peace  is  not  actionable,  see  p.  70.  There  is  no 
authority,  however,  for  supposing  that  an  action  of  libel  would  not  lie,  if 
such  words  were  printed  and  published. 

Illustrations. 

It  is  libellous  to  write  and  publish  of  a  Protestant  archbishop  that  he  attempted  to 
convert  a  Catholic  priest  by  offers  of  money  and  of  preferment  in  the  Church  of  Eng- 
land and  Ireland,  Archbishop  of  Tuam  v.  Robeson  and  another,  5  Bing.  17  ;  2  M.  & 
P.  32.  ^ 

It  is  libellous  to  wiite  and  publish  of  an  ex-mayor  and  a  justice  of  the  peace  that 
during  his  mayoralty  he  was  guilty  of  partiality  and  corruption  and  displayed  ignorance 
of  his  duties  ;  and  this  notwithstanding  the  public  nature  of  the  offices  he  held.  Par- 
miter  V.  Coupland,  6  M.  &  W.  105  ;  9  L.  J.  Ex.  202  ;  4  Jur.  701  ;  Goodburne  v.  Bow- 
man, 9  Bing.  532. 

It  is  libellous  to  write  and  publish  of  a  clergyman  that  he  came  to  the  performance 
of  divine  service  in  a  towering  passion,  and  that  his  conduct  is  calculated  to  make  in- 
fidels of  his  congregation.  "Walter  v.  Brogden,  19  C.  B.  N.  S.  65  ;  Gathercole  v.  Miall, 
15  M.  &  W.  319  ;  10  Jur.  337 ;  15  L.  J.  Ex.  179.  But  see  Kelly  v.  Tinling,  L.  R.  1 
Q.  B.  699  ;  35  L.  J.  Q.  B.  231  ;  12  Jur.  N.  S.  940  ;  14  W.  R.  51  ;  13  L.  T.  255. 

It  is  libellous  to  write  and  publish  of  a  dissenting  minister  : — "A  serious  misundei* 
standing  has  recently  taken  place  amongst  the  independent  (fissenters  of  Great  Marlow 
and  their  pastor,  in  consequence  of  some  personal  invectives  publicly  thrown  from  the 
pulpit  by  the  latter  against  a  young  lady  of  distinguished  merit  and  spotless  reputa- 
tion. We  understand,  however,  that  the  matter  is  to  be  taken  up  seriously." — Buck's 
Chronicle.     Edwards  v.  Bell  and  others,  1  Bing.  403. 

As  to  a  Roman  Catholic  priest,  see  Hearne  v.  Stowell,  12  A.  &  E.  719  ;  4  P.  &  D. 
696  ;  6  Jur.  458. 

A  body  of  trustees  of  a  certain  charity  can  sue  jointly  for  a  libellous  letter  published 
in  the  "Wisbeach  Chronicle  imputing  to  them  improper  management  of  the  charity 
funds.     Booth  v.  Briscoe  (C.  A.),  2  Q.  B.  D.  496 ;  25  W.  R.  838. 

Parish  Officers,  d-c. 

It  is  libellous  to  charge  an  overseer  of  a  parish  with  "  oppressive  conduct "  towards 
the  paupers.     "Woodard  v.  Dowsing,  2  M.  &  Ry.  74. 

*  A  placard  stating  of  a  certain  overseer  that  when  out  of  office  he  advocated        *  29 
low  rates,  when  in  office  he  advocated  high  rates,  and  that  the  defendant  would 
not  trust  him  with  £5  of  his  property,  is  a  libel.     Cheese  v.  Scales,  10  M.  &  W.  488. 

It  is  libellous  to  accuse  a  vestry  clerk  with  having  in  any  way  misapplied  the  money 
of  the  parish.     May  v.  Brown,  3  B.  &  C.  113. 

It  is  libellous  to  charge  a  guardian  of  the  poor  with  having  been  during  the  preced- 
ing year  "a  great  defaulter  "  in  his  account.     "Wamian  v.  Hine,  1  Jur.  820. 

It  is  libellous  to  charge  the  clerk  to  the  justices  of  a  borough  with  corruption. 
Blagg  V.  Sturt,  10  Q.  B.  899  ;  16  L.  J.  Q.  B.  39  ;  11  Jur.  101.  (a) 

(a)  So  to  charge  a  late  sealer  of  weights  "doctoring"  such  weights.  Eviston  v. 
and  measures  with  "  tampering  with  "  and     Cramer,  47  Wis.  659. 

27 


*  29  DEFAMATORY    WORDS. 

It  is  libellous  to  impute  habitual  drunkenness  and  neglect  of  his  duties  to  a  certifi- 
cated master  mariner.  Coxhead  v.  Richards,  2  C.  B.  569  ;  15  L.  J.  C.  P.  278  ;  10 
Jur,  984  ;  Harwood  v.  Green,  2  C.  &  P.  141  ;  Irwin  v.  Brandwood,  2  H.  &  C.  960  ;  33 
L.  J.  Ex.  257  ;  9  L.  T.  772  ;  10  Jur.  N.  S.  370  ;  12  W.  R.  438. 

Medical  Men. 

To  advertise  falsely  that  certain  quack  medicines  were  prepared  by  a  physician  of 
eminence  is  a  libel  upon  such  physician.  Clark  v.  Freeman,  11  Beav.  112  ;  17  L.  J. 
Ch.  142  ;  12  Jur.  149. 

But  it  is  no  libel  to  write  and  publish  of  a  physician  that  he  has  met  homceopathists 
in  consultation  ;  although  it  be  averred  in  the  declaration  that  to  do  so  would  be  a 
breach  of  professional  etiquette.  Clay  v.  Roberts,  9  Jur.  (N.  S.)  580  ;  11  W.  R.  649  ; 
8  L.  T.  397. 

Barristers.  ' 

To  write  and  publish  falsely  of  a  barrister  that  he  edited  the  third  edition  of  a  law- 
book is  actionable,  if  the  book  is  proved  to  be  full  of  inaccuracies  which  would  seri- 
ously prejudice  the  plaintiff's  reputation.  Archbold  v.  Sweet,  1  Moo.  &  Rob.  162;  5 
C.  &  P.  219. 

To  write  and  publish  of  a  barrister  that  he  is  "  a  quack  lawyer  and  a  mountebank  " 
and  "  an  impostor"  is  actionable.     Wakley  v.  Healey,  7  C.  B.  591 ;  18  L.  J.  C.  P.  241. 

Solicitors  and  Attorneys. 

It  is  libellous  to  compare  the  conduct  of  an  attorney  in  a  particular  case  to  that  of 
the  celebrated  firm  of  Quirk,  Gammon  &  Snap  in  "  Ten  Thousand  a  Year."(a)  Wood- 
gate  V.  Ridout,  4  F.  &  F.  202. 

A  correct  report  in  the  Observer  of  certain  legal  proceedings  was  headed  "  Shameful 
conduct  of  an  attorney."  Held  that  the  heading  was  a  libel,  even  though  all  that  fol- 
lowed was  protected.  Clement  v.  Lewis,  3  Br.  k  Bing.  297  ;  3  B.  &  Aid.  702  ;  7 
Moore,  200. 

*  30  *  The  libel  complained  of  was  headed  —  "  How  Lawyer  B.  treats  his  clients," 

followed  by  a  report  of  a  particular  case  in  which  one  client  of  Lawyer  B.'s 
had  been  badly  treated.  That  particular  case  was  proved  to  be  correctly  reported,  but 
this  was  held  insufficient  to  justify  the  heading  which  implied  that  Lawyer  B.  generally 
treated  his  clients  badly.     Bishop  v.  Latimer,  4  L.  T.  775. 

Libel  complained  of,  that  the  plaintiff,  a  proctor,  had  three  times  been  suspended 
from  practice  for  extortion.  Proof  that  he  had  once  been  so  suspended  was  held  in- 
sufficient. Clarkson  v.  Lawson,  6  Bing.  266,  587  ;  3  M.  &  P.  605  ;  4  M.  &  P.  356  ; 
Blake  v.  Stevens  and  others,  4  F.  &  F.  232  ;  11  L.  T.  543. 

It  is  libellous  to  impute  to  a  solicitor  "  disgraceful  conduct  "  in  having  at  an  election 
disclosed  confidential  communications  made  to  him  professionally.  Moore  v.  Terrell 
and  others,  4  B.  &  Ad.  870  ;  1  N.  &  M.  559. 

Journalists. 

It  is  libellous  to  impute  to  the  editor  and  proprietor  of  a  newspaper  that  in  advocat- 
ing the  sacred  cause  of  the  dissemination  of  Christianity  among  the  Chinese,  he  was  an 

{a)  So  to  call  a  man  a  "pettifogging  shyster"  in  a  newspaper.     Bailey  v.  Kala- 
mazoo Pub.  Co.,  40  Mich.  251. 

28 


LIBELS    ON   TRADEES.  *  30 

impostor,  anxious  only  to  put  money  into  his  ovm  pocket  by  extending  the  circulation 
of  his  paper  ;  and  that  he  had  published  a  fictitious  subscription  list  with  a  \'iew  to 
induce  people  to  contribute.  Campbell  v.  Spottisvvoode,  SB.  &  S.  769  ;  32  L.  J,  Q. 
B.  185  ;  9  Jur.  N.  S.  1069  ;  11  W.  R.  569  ;  8  L.  T.  201. 

It  is  libellous  to  call  the  editor  of  a  newspaper  "  a  libellous  journalist."  Wakley  v. 
Cooke  &  Healey,  4  Exch.  511  ;  19  L.  J.  Ex.  91. 

It  is  libellous  to  write  and  publish  that  a  newspaper  has  a  separate  page  devoted  to 
the  advertisements  of  usurers  and  (^uack  doctors,  and  that  the  editor  takes  respectable 
advertisements  at  a  cheaper  rate  if  the  advertisers  will  consent  to  their  appearing  in 
that  page.     Russell  and  another  v.  Webster,  23  W.  R.  59. 

It  is  not  libellous  for  one  newspaper  to  call  another  "  the  most  vulgar,  ignorant  and 
scurrilous  journal  ever  published  in  Great  Britain  ; "  but  it  is  libellous  to  add  "  it  is 
the  lowest  now  in  circulation  ;  and  we  submit  the  fact  to  the  consideration  of  advertis- 
ers ; "  for  that  affects  the  sale  of  the  paper  and  the  profits  to  be  made  by  advertising. 
—  (Lord  Kenvon,  C.J.)    Heriot  v.  Stuart,  1  Esp.  437. 

Any  written  words  are  libellous  which  impeach  the  credit  of 
any  merchant  or  trader  by  imputing  to  him  bankruptcy,  insol- 
vency, or  even  embarrassment  either  past,  present,  or  future,  or 
which  impute  to  him  fraud  or  dishonesty  or  any  mean  and  dishon- 
orable trickery  in  the  conduct  of  his  business,  or  which 
in  any  other  *  method  are  prejudicial  to  him  in  the  way  of  *  31 
his  employment  or  trade,  (a) 

"  The  law  has  alvi^ays  been  very  tender  of  the  reputation  of  tradesmen, 
and  therefore  words  spoken  of  them  in  the  way  of  their  trade  will  hear  an 
action  that  will  not  be  actionable  in  the  case  of  another  person,  and  if  bare 
words  are  so,  it  will  be  stronger  in  the  case  of  a  libel  in  a  public  newspaper 
which  is  so  diffusive."  ^  (b) 

Competition  between  rival  traders  is  allowed  to  any  extent,  so  long  as 
only  lawful  means  are  resorted  to.^  But  force  and  violence  must  not  be 
used,^  nor  threats,*  nor  imputations  of  fraud  or  dishonesty. 

Illustrations. 

The  printers  of  a  newspaper,  by  a  mistake  in  setting  up  in  type  the  announcements 
from  the  London  Oazette,  placed  the  name  of  the  plaintiff's  firm  under  the  heading 

1  Per  curiam  in  Harman  v.  Delany,  2  Str.  898  ;  1  Barnard.  289  ;  Fitz.  121. 

2  Pudsey  Coal  Gas  Co.  v.  Corporation  of  Bradford,  L.  R.  15  Eq.  167  ;  42  L.  J.  Ch. 
293  ;  21  W.  R.  286  ;  28  L.  T.  11. 

8  Young  V.  Hickens,  6  Q.  B.  606. 

*  Tarleton  and  others  v.  McGawley,  Peake,  270. 

(a)  But  the  business  should  be  lawful,  v.  Skofield,    56   Elaine,    483  ;    Fowles  v. 

Johnson  v.  Simonton,  43  Cal.  242.  Bowen,  30  N.  Y.  20  ;  Else  v.  Ferris,  Anth. 

{b)    Weiss   V.    Whittemore,    28    Mich.  23. 
366  ;  Platto  v.  Geilfuss,  47  Wis.  491  ;  Orr 

29 


•  31  defa:\iatoe,y  words. 

"  First  Meetings  under  the  Bankruptcy  Act"  instead  of  under  "Dissolutions  of  Part- 
nership." An  ample  apology  was  inserted  in  the  next  issue  :  no  damage  was  proved  to 
have  followed  to  the  plaintiff :  and  there  was  no  suggestion  of  any  malice.  In  an  action 
for  libel  against  the  proprietors  of  the  paper,  the  jury  awarded  the  plaintiff  £50  dam- 
ages. Held  that  the  publication  was  libellous,  and  that  the  damages  awarded  were  not 
excessive.     Shepheard  v.  Whitaker,  L.  R.  10  C.  P.  502  ;  32  L.  T.  402. 

[N.B.  —  The  chief  clerk  thought  £10  sufficient  in  a  very  similar  case,  Stubbs  v. 
Marsh,  15  L.  T.  312.] 

It  is  libellous  to  advertise  that  a  certain  optician  is  "a  licensed  hawker"  and  "a 
quack  in  spectacle  secrets."     Keyzor  and  another  v.  Newcomb,  1  F.  &  F.  559. 

It  is  a  libel  to  write  and  publish  of  a  licensed  victualler  that  his  licence  has  been 
refused  ;  as  it  suggests  that  he  had  committed  some  breach  of  the  licensing  laws.  Big- 
nell  V.  Buzzard,  3  H.  &  N.  217  ;  27  L.  J.  Ex.  355. 

It  is  libellous  to  write  and  publish  of  the  defendant  that  he  regularly  supplies  bad 
and  unwholesome  water  to  ships,  whereby  the  passengers  are  made  ill.  Solomon  v. 
Lawson,  8  Q.  B.  S23  ;  15  L.  J.  Q.  B.  253  ;  10  Jur.  796. 

*  32         *  ^^^  ^°^  °^^  tradesman  merely  to  puff  up  his  own  goods,  and  decry  those 

of  his  rival,  is  no  libel ;  unless  fraud  or  dishonesty  be  imputed.  Evans  v, 
Harlow,  5  Q.  B.  624 ;  13  L.  J.  Q.  B.  120  ;  8  Jur.  571 ;  D.  &  M.  507.  Heriot  v.  Stuart, 
1  Esp.  437,  ante,  p.  30. 

Partners  may  sue  jointly  for  a  libel  defamatory  of  the  partnership.  Le  Fanu  v. 
Malcolmson,  1  H.  L.  C.  637  ;  8  Ir.  L.  E.  418.  Haythorn  v.  Lawson,  3  C.  &  P.  196. 
Ward  V.  Smith,  6  Bing.  749  ;  4  C,  &  P.  302  ;  4  M.  &  P.  595. 

So  a  company  or  corporation  can  sue  even  one  of  their  own  members  for  a  libel 
relating  to  their  management  of  their  business.  Williams  v.  Beaumont,  10  Bing.  260  ; 
3  Moore  &  Sc.  705.  Eastwood  v.  Holmes,  1  F.  &  F.  347.  Metropolitan  Omnibus  Co. 
V.  Hawkins,  4  H.  &  N.  87  ;  28  L.  J.  Ex.  201  ;  5  Jur.  N.  S.  226  ;  7  W.  R.  265  ;  32  L. 
T.  (Olds.)  281. 

A  married  woman  trading  under  her  own  name  according  to  the  custom  of  London 
may  sue  as  a  trader,  without  joining  her  husband,  for  a  libel  on  her  in  the  wa}'  of  her 
trade.  Per  Brett,  J.,  in  Summers  v.  City  Bank,  L.  R.  9  C.  P.  583  ;  43  L.  J.  C.  P. 
261. 

Sometimes  also  an  attack  upon  a  thing  may  be  defamatory  of 
the  owner  of  that  thing,  or  of  others  immediately  connected  with 
it.  But  this  is  only  so  where  an  attack  upon  the  thing  is  also  an 
indirect  attack  upon  the  individual.  If  the  words  do  not  touch 
the  personal  character  or  professional  conduct  of  the  individual, 
they  are  not  defamjitory  of  Mm,  and  no  action  lies  (unless  the 
words  fall  within  the  rules  relating  to  Slander  of  Title  ;  see  jwosf, 
«.  v.).  But  to  impute  that  the  goods  which  the  defendant  sells 
or  manufactures  are  adulterated  to  his  knowledge,  is  a  distinct 
charge  against  the  defendant  of  fraud  and  dishonesty  in  his  trade. 

A  declaration  alleged  that  the  plaintiffs  were  manufacturers  of  bags,  and  had  manu- 
factured a  bag  which  they  called  the  "  Bag  of  Bags,"  and  the  defendant  printed  and 
published,  concerning  the  plaintiffs  in  their  business,  the  words  following  :  —  "As  we 
have  not  seen  the  Bag  of  Bags,  we  cannot  say  that  it  is  useful,  or  that  it  is  portable,  or 
that  it  is  elegant.     All  these  it  may  be,  but  the  only  point  we  can  deal  with  is  the  title, 

30 


LIBELS   ON   THINGS.  *  32 

which  we  think  very  silly,  very  slangy,  and  very  vulgar  ;  and  which  has  been 
forced  upon  the  notice  *  of  the  public  ad  nauseam."  On  demurrer,  Lush,  J.,  *  33 
held  that  the  words  could  not  be  deemed  libellous,  either  upou  the  plaintiffs  or 
upon  their  mode  of  conducting  their  business.  But  Mellor  and  Hannen,  JJ.,  thought 
that  it  was  a  question  for  the  jury  whether  the  words  went  beyond  the  limits  of  fair 
criticism,  and  whether  or  not  they  were  intended  to  disparage  the  plaintiffs  in  the 
conduct  of  their  business.  Jenner  and  another  v.  A'Beckett,  L.  E.  7  Q.  B.  11  ;  41  L.  J. 
Q.  B.  14  ;  20  W.  R.  181  ;  25  L.  T.  464. 

The  defendant  published  an  advertisement  in  these  words  : —  ""Whereas  there  was 
an  account  in  the  Craftsman  of  John  Harman,  gunsmith,  making  guns  of  two  feet  six 
inches  to  exceed  any  made  by  others  of  a  foot  longer  (with  whom  it  is  supposed  he  is  in 
fee),  this  is  to  advise  all  gentlemen  to  be  cautious,  the  said  gunsmith  not  daring  to 
engage  with  any  artist  in  town,  nor  ever  did  make  such  an  experiment  (except  out  of  a 
leather  gun),  as  any  gentleman  may  be  satisfied  of  at  the  Cross  Guns  in  Longacre." 
Held  a  libel  on  the  plaintiff  in  the  way  of  his  trade.  Verdict  for  the  plaintiff.  Dam- 
ages £50.     Harman  v.  Dulany,  2  Stra.  898  ;  1  Barnard.  289,  438  ;  Fitz.  121. 

A  declaration  alleged  that  the  plaintiff  carried  on  the  trade  of  an  engineer,  and  sold 
in  the  way  of  his  trade  goods  called  "self-acting  tallow  syphons  or  lubricators,"  and 
that  the  defendant  published  of  the  plaintiff  in  his  said  trade  and  as  such  inventor  as 
follows  :—  "  This  is  to  caution  parties  employing  steam  power  from  a  person,  offering  what 
he  calls  self-acting  tallow  syphons  or  lubricators,  stating  that  he  is  the  sole  inventor, 
manufacturer  and  patentee,  thereby  monopolizing  high  prices  at  the  expense  of  the 
public.  R.  Harlow  (the  defendant)  takes  this  opportunity  of  saying  that  such  a  patent 
does  not  exist,  and  that  he  has  to  offer  an  improved  lubricator,  which  dispenses  with 
the  necessity  of  using  more  than  one  to  a  steam  engine,  thereby  constituting  a  sa\-ing 
of  50  per  ceiat.  over  every  other  kind  yet  offered  to  the  public.  Those  who  have  already 
adopted  the  lubricators  against  which  R.  H.  would  caution,  will  find  that  the  tallow  is 
wasted  instead  of  being  effectually  employed  as  professed."  Held  no  libel  on  the  plain- 
tiff, either  generally,  or  in  the  way  of  his  trade,  but  only  a  libel  on  the  lubricators,  and 
therefore  not  actionable  without  proof  of  special  damage.  Evans  v.  Harlow,  5  Q.  B. 
624  ;  13  L.  J.  Q.  B.  120  ;  8  Jur.  571  ;  D.  &  M.  507. 

So  where  one  tradesman  merely  asserts  that  his  own  goods  are  superior  to  those  of 
some  other  tradesman,  no  action  lies  unless  the  words  be  published  falsely  and  mali- 
ciously and  special  damage  has  ensued.  Young  and  others  v.  Macrae,  3  B.  &  S.  264  ; 
82  L.  J.  Q.  B.  6  ;  11  "W.  R.  63  ;  9  Jur.  N.  S.  539  ;  7  L.  T.  354.  Western  Counties 
Manure  Co.  v.  Lawes  Chemical  Manure  Co.,  L.  R.  9  Ex.  218  ;  43  L.  J.  Ex.  171  ;  23 
W.  R.  5. 

A  libel  on  the  management  of  a  newspaper  is  a  libel  on  its  proprietors,  jointl)',  in 
the  way  of  their  trade,  and  therefore  actionable  without  special  damage.  Russell  and 
another  v.  Webster,  23  W.  R.  59. 

*  To  write  and  publish  that  a  ship  is  unseaworthy  may  be  a  libel  on  its  cap-        34 
tain.     "  It  is  like  saying  of  an  innkeeper  that  hisM'ine  or  his  tea  is  poisoned." 
Ingram  v.  Lawson,  6  Bing.  N.  C.  212  ;  8  Sc.  471,  478  ;  4  Jur.  151  ;  9  C.  &  P.  326. 

To  advertise  falsely  that  certain  quack  medicines  were  prepared  by  an  eminent  phy- 
sician, is  a  libel  upon  such  physician.  Clark  v.  Freeman,  11  Beav.  112  ;  17  L.  J.  Ch. 
142  ;  12  Jur.  149. 

It  is  libellous  falsely  to  impute  to  a  bookseller  that  he  publishes  immoral  or  absurd 
poems.     Tabart  v.  Tipper,  1  Camp.  350. 

It  is  libellous  falsely  to  write  and  publish  of  professional  vocalists  that  they  had 
advertised  themselves  to  sing  at  certain  music-halls  songs  which  they  had  no  right  to 

31 


*  34  DEFAMATORY   WOEDS. 

sing  in  rublic.     Hart  and  another  v.  Wall,  2  C.  P.  D.  146  ;  46  L.  J.  C.  P.  227  ;  25 
W.  11.  373. 

But  comments,  however  severe,  on  the  advertisements  or  handbills  of  a  tradesman, 
will  not  be  libellous,  if  the  jury  find  that  they  are  fair  and  temperate  comments  not 
wholly  undeserved  on  a  matter  to  which  public  attention  was  expressly  invited  by  the 
plaintiff.  Paris  v.  Levy,  9  C.  B.  N.  S.  342  ;  30  L.  J.  C.  P.  11  ;  9  W.  R.  71  ;  3  L.  T. 
324  ;  2  F.  &  F.  71.  Morrison  and  another  v.  Banner  and  another,  3  Bing.  N.  C.  759  ; 
4  Scott,  524  ;  3  Hodges,  108. 

Fair  and  bond  fide  Comment, 

Every  one  has  a  right  to  comment  on  matters  of  public  interest 
and  general  concern,  provided  he  does  so  fairly  and  with  an  honest 
purpose.  Such  comments  are  not  libellous,  however  severe  in 
their  terms,  unless  they  are  written  intemperately  and  maliciously. 
Every  citizen  has  full  freedom  of  speech  on  such  subjects,  but  he 
must  not  abuse  it. 

This  branch  of  the  law  is  of  but  recent  growth.  Cockburn,  C.J.,  says 
in  Wason  v.  Walter  :  ^  — 

"  Our  law  of  libel  has,  in  many  respects,  only  gradually  developed  itself 
into  anything  like  a  satisfactory  and  settled  form.  The  full  liberty  of  pub- 
lic writers  to  comment  on  the  conduct  and  motives  of  public  men  has  only 
in  very  recent  times  been  recognised.     Comments  on  government, 

*  35     on  ministers  and  ofl&cers  *  of  state,  on  members  of  both  Houses  of 

Parliament,  on  judges  and  other  public  functionaries,  are  now  made 
eveiy  day,  which  half  a  century  ago  would  have  been  the  subject  of  actions 
or  ex-officio  informations,  and  would  have  brought  down  fine  and  impris- 
onment on  publishers  and  authors.  Yet  who  can  doubt  that  the  public 
are  gainers  by  the  change,  and  that,  though  injustice  may  often  be  done, 
and  though  public  men  may  often  have  to  smart  under  the  keen  sense  of 
wrong  inflicted  by  hostile  criticism,  the  nation  profits  by  public  opinion 
being  thus  freely  brought  to  bear  on  the  discharge  of  pubhc  duties  1 " 

The  right  to  comment  upon  the  public  acts  of  public  men  is  the 
right  of  every  citizen,  and  is  not  the  peculiar  privilege  of  the  press.^ 
But  newspaper  writers,  though  in  strict  law  they  stand  in  no  bet- 
ter position  than  any  other  person,  are  generally  allowed  greater 
latitude  by  juries.  For  it  is  in  some  measure  the  duty  of  the 
press  to  watch  narrowly  the  conduct  of  all  government  officials, 
and  the  working  of  all  public  institutions,  to  comment  freely  on 
all  matters  of  general  concern  to  the  nation,  and  to  fearlessly 
expose  abuses. 

1  L.  R.  4  Q.  B.  93,  94.  2  Kane  v.  Mulvauy,  Ir.  R.  2  C.  L.  402. 

82 


CRITICISM.  *  35 

It  has  often  been  said  in  nisi  prius  cases,  that  fair  and  honest  criticism 
in  matters  of  public  concern  is  " privileffed."  But  this  does  not  mean  that 
such  words  are  "  privileged  by  reason  of  the  occasion "  in  the  strict  legal 
sense  of  that  term.  The  defence  really  is,  that  the  words  are  not  defama- 
tory ;  that  criticism  is  no  libel.  This  is  very  clearly  pointed  out  by  Black- 
burn, J.,  in  Campbell  v.  Spottiswoode.^ 

If  such  criticism  was  privileged  in  the  strict  sense  of  the  word,  it  would 
in  every  case  be  necessary  for  the  plaintiff  to  prove  actual  malice,  however 
false  and  however  injurious  the  strictures  may  have  been ;  while  the  de- 
fendant would  only  have  to  prove  that  he  honestly  believed  the  charges 
himself  in  order  to  escape  all  liability ;  and  this  clearly  is  not  the  law. 
Comment  and  criticism  on  matters  of  public  interest  stand  on  a 
different  *  footing  from  reports  of  judicial  or  Parliamentary  pro-  *  36 
ceedings.  Such  reports  are  privileged,  so  long  as  they  are  fair  and 
accurate  reports  and  nothing  more.  But  so  soon  as  there  is  any  attempt 
at  comment,  the  privilege  is  lost.  In  short,  report  and  comment  are  two  dis- 
tinct and  separate  things.  Fair  reports  are  privileged,  while  fair  comments 
on  matters  of  public  interest  are  no  libels  at  all. 

Illustrations. 

Condemnation  of  the  foreign  policy  of  the  Government,  however  sweeping,  is  no 
libel. 

Animadversions,  however  severe,  on  the  use  made  by  the  vestry  of  the  money  of  the 
ratepayers,  is  not  libellous,  unless  corruption  or  embezzlement  be  imputed  to  individual 
vestrymen. 

Criticism,  however  trenchant,  on  any  new  poem  or  novel,  or  on  any  picture  ex- 
hibited in  a  public  gallery,  is  no  libel. 

But  to  maliciously  pry  into  the  private  life  of  any  poet,  novelist,  artist,  or  states- 
man, is  indefensible. 

Criticism. 

Every  one  of  the  public  is  entitled  to  pass  an  opinion  on  every- 
thing which  in  any  way  invites  public  attention.  Those  of  the 
public  whose  opinion  on  such  matters  is  best  worth  having  are 
culled  critics.  From  their  education,  ability,  or  experience,  they 
can  judge  with  precision  (which  is  the  true  meaning  of  the  word 
to  criticize'),  and  their  opinion,  therefore,  is  entitled  to  respect. 
Their  criticism  may  be  commendatory,  but  it  is,  perhaps,  more 
generally  unfavorable.  Still,  so  long  as  it  continues  to  be  criti- 
cism at  all,  it  is  not  defamatory.  Where  defamation  commences, 
true  criticism  ends. 

1  3  B.  &  S.  769  ;  32  L.  J.  Q.  B.  185  ;  9  Jur.  N.  S.  1069  ;  11  W.  II.  569  ;  8  L.  T. 

201. 

3  33 


*  36  DEFAMATORY  WOEDS. 

True  criticism  differs  from  defamation  in  the  following  particu- 
lars :  — 

1.  Criticism  deals  only  with  such  things  as  invite  public  atten- 
tion, or  call  for  public  comment. 

2.  Criticism  never  attacks  the  individual,  but  only  his  loorh. 

Such  work  may  be  either  the  policy  of  a  government,  the 

*  37      action  of  a  member  of  Parliament,  a  public  *  entertain- 

ment, a  book  published,  or  a  picture  exhibited.  In  every 
case  the  attack  is  on  a  man's  acts^  or  on  some  tiling,  and  not  upon 
the  man  himself.     A  true  critic  never  indulges  in  personalities. 

3.  True  criticism  never  imputes  or  insinuates  dishonorable 
motives  (unless  justice  absolutely  requires  it,  and  then  only  on 
the  clearest  proofs). 

4.  The  critic  never  takes  advantage  of  the  occasion  to  gratify 
private  malice,  or  to  attain  any  other  object  beyond  the  fair  dis- 
cussion of  matters  of  public  interest,  and  the  judicious  guidance 
of  the  public  taste. 

Every  one  has  a  right  to  publish  such  fair  and  candid  criticism, 
even  "  although  the  author  may  suffer  loss  from  it.  Such  a  loss 
the  law  does  not  consider  as  an  injury,  because  it  is  a  loss  Avhich 
the  party  ought  to  sustain.  It  is,  in  short,  the  loss  of  fame  and 
profits  to  which  he  was  never  entitled."  .  .  .  .  "  Reflection 
upon  personal  character  is  another  thing.  Show  me  an  attack 
upon  the  moral  character  of  the  plaintiff,  or  any  attack  upon  his 
character  unconnected  with  his  authorship,  and  I  should  be  as 
ready  as  any  judge  who  ever  sat  here  to  protect  him.  But  I 
cannot  hear  of  malice  on  account  of  turning  his  works  into  ridi- 
cule." ^  So  in  Tabart  v.  Tipper,^  the  same  learned  Judge  says : 
"  Liberty  of  criticism  must  be  allowed,  or  we  should  neither  have 
purity  of  taste  nor  of  morals.  Fair  discussion  is  essentially  neces- 
sary to  the  truth  of  history  and  the  advancement  of  science. 
That  publication,  therefore,  I  shall  never  consider  as  a  libel, 
which  has  for  its  object,  not  to  injure  the  reputation  of  any  indi- 
vidual, but  to  correct  misrepresentations  of  fact,  to  refute  sophis- 
tical reasoning,  to  expose  a  vicious  taste  in  literature,  or  to 

*  38      censure  what  is  hostile  to  morality."    "  God  forbid,"  *  ex- 

claims Alderson,  B.,  in  Gathercole  v.  Miall,^  "  God  forbid 
that  you  should  not  be  allowed  to  comment  on  the  acts  of  all 

^  Per  Lord  Ellenborongh  in  the  celebrated  case  of  Sir  John  Carr  v.  Hood,  1  Camp. 
355,  n.  2  I  Camp.  351.  ^  15  m.  &  W.  340. 

34 


BONA   FIDE   COIMJNIENTS.  *  38 

mankind,  provided  you  do  it  justly  and  truly."  "A  critic  must 
confine  himself  to  criticism,  and  not  make  it  the  veil  for  personal 
censure,  nor  allow  himself  to  run  into  reckless  and  unfair  attacks 
merely  from  the  love  of  exercising  his  power  of  denunciation."  ^ 

But  all  comments  must  be  fair  and  honest.  Matters  of  public 
interest  must  be  discussed  temperately.  Wicked  and  corrupt 
motives  should  never  be  wantonly  assigned.  And  it  will  be  no 
defence  that  the  writer,  at  the  time  he  wrote,  honestly  believed 
in  the  truth  of  the  charges  he  was  making,  if  such  charges  be 
made  recklessly,  unreasonably,  and  without  any  foundation  in 
fact.2  Some  people  are  very  credulous,  especially  in  politics  ;  and 
can  readily  believe  any  evil  of  their  opponents.  There  must 
therefore  be  some  foundation  in  fact  for  the  charges  made ;  the 
writer  must  bring  to  his  task  some  degree  of  moderation  and 
judgment. 

Slight  unintentional  errors,  on  the  other  hand,  will  be  excused. 
If  a  writer  in  the  course  of  temperate  and  legitimate  criticism 
falls  into  error  as  to  some  detail,  or  draws  an  incorrect  inferenue 
from  the  facts  before  him,  and  thus  goes  beyond  the  limits  of 
strict  truth,  such  inaccuracies  will  not  cause  judgment  to  go 
against  him,  if  the  jury  are  satisfied,  after  reading  the  whole  pub- 
lication, that  it  was  written  honestly,  fairly,  and  with  regard  to 
what  truth  and  justice  require.  "  It  is  not  to  be  expected  that  a 
public  journalist  will  alwa3-s  be  infallible."  ^ 

*  But  the  critic  must  confine  himself  to  the  merits  of      *  39 
the  work  before  him.     He  must  not  follow  the  plaintiff 
into  his  domestic  life,  or  attack  his  private  character.     He  must 
carefully  examine  the  production  before  him,  and  then  honestly 
state  his  true  opinion  of  it. 

So  long  as  a  writer  confines  himself  to  comments  on  the  public 
conduct  of  public  men,  the  mere  fact  that  motives  have  been  un- 
justly assigned  for  such  conduct  is  not  of  itself  sufficient  to  de- 
stroy this  defence,  though  of  course  it  will  tell  strongly  in  favor 
of  the  plaintiff.  "  A  line  must  be  drawn,"  says  Cockburn,  C.J., 
in  Campbell  v.  Spottiswoode,*  "  between  criticism  upon  public 
conduct  and  the  imputation  of  motives  by  which  that  conduct 

1  Per  Huddleston,  B.,  in  Whistler  v.  Ruskin  ;   Times  for  Nov.  27th,  1878. 

2  Campbell  v.  Spottiswoode,  3  F.  &  F.  421  ;  3  B.  &  S.  769  ;  32  L.  J.  Q.  B.  185  ; 
11  W.  R.  569;  9  Jur.  N.  S.  1069  ;  8  L.  T.  201. 

3  Per  Cockburn,  C.J.,  2  F.  &  F.  216. 

*  3.  B.  &  S.  776,  7  ;  32  L.  J.  Q.  B.  199  ;  8  L.  T.  201. 

35 


39 


DEFAMATORY   WORDS. 


may  be  supposed  to  be  actuated  ;  one  man  has  no  right  to 
impute  to  another,  whose  conduct  may  be  fairly  open  to  ridicule 
or  disapprobation,  base,  sordid,  and  wicked  motives,  unless  there 
is  so  much  ground  for  the  imputation  that  a  jury  shall  find,  not 
only  that  he  had  an  honest  belief  in  the  truth  of  his  statements, 
but  that  his  belief  was  not  without  foundation  .  .  .  ."  "I  think 
the  fair  position  in  which  the  law  may  be  settled  is  this  :  That 
where  the  public  conduct  of  a  public  man  is  open  to  animadver- 
sion, and  the  writer  who  is  commenting  upon  it  makes  imputa- 
tions on  his  motives,  which  arise  fairly  and  legitimately  out  of 
his  conduct,  so  that  a  jury  shall  say  that  the  criticism  was  not 
only  honest  but  also  well  founded,  an  action  is  not  maintainable. 
But  it  is  not  because  a  public  writer  fancies  that  the  conduct  of 
a  public  man  is  open  to  the  suspicion  of  dishonesty,  he  is  there- 
fore justified  in  assailing  his  character  as  dishonest."  (a) 


(a)  The  author  has  done  well  to  point 
out  the  fact  generally  overlooked  that 
criticism,  when  not  actionable  (the  au- 
thor would  not  say  that  criticism  as 
such  might  not  in  certain  cases  be  ac- 
tionable) is  so,  not  in  reality  because  of 
privilege  in  the  technical  sense,  so  much  as 
because  it  is  not  defamation.  It  seldom 
has  the  quality  (when  not  actionable)  of 
defamation  in  the  ordinary  sense,  in  that  it 
rarely  touches  moral  character.  Privilege 
on  the  other  hand  relates  to  what  other- 
wise, in  ordinary  cases,  would  be  defama- 
tion of  character.  The  only  exception 
appears  to  be  in  that  class  of  cases  in 
which  a  charge  is  held  actionable  which 
(being  false)  touches  a  man  in  his  office, 
profession,  or  occupation.  It  is  with  this 
special  class  of  cases  that  the  law  of  criti- 
cism is  generally  concerned  ;  and  it  is  only 
in  a  special  sense  that  defamation  can  be 
predicated  of  such  cases.  But  criticism 
may  also  in  the  true  sense  of  the  term 
touch  moral  character  ;  a  point  to  which 
we  shall  again  advert. 

While  however  criticism  does  not  nec- 
essarily concern  moral  character,  it  may 
still  be  actionable  after  the  manner  of  or- 
dinary defamation.  Thus  it  has  been  held 
that  to  say  of  a  lawyer,  "  He  is  a  dunce," 
is  actionable  per  se,  supposing,  it  is  to  be 
assumed,  that  the  charge  was  not  made 
and  understood  with  reference  to  a  partic- 
ular cause  in  which  the  person  making  it 

36 


had  some  interest,  or  that  there  was  not 
some  other  justification  of  it.  Peard  v. 
Jones,  Cooke,  Car.  382.  See  Baker  v. 
Morfue  (or  Morphew),  Sid.  327  ;  s.  c.  2 
Keb.  202  ;  Powell  v.  Jones,  1  Lev.  297. 
But  that  is  criticism  or  may  be  such  in  a 
legitimate  sense  of  the  word  ;  while  to  call 
a  man  a  thief  would,  if  false,  be  defama- 
tion and  not  criticism  at  all.  On  the 
other  hand  to  say  of  a  lawyer,  with  refer- 
ence at  least  to  a  criminal  prosecution  or 
a  cause  in  which  the  jiarty  speaking  was 
personally  interested,  "  He  managed  the 
case  like  one  devoid  of  legal  knowledge," 
or  "  He  displayed  profound  ignorance  of 
law,"  would  not  in  general  be  actionable, 
as  it  seems.  So  (to  take  a  clearer  case  of 
criticism)  for  an  art  critic  to  say  of  a 
painter,  witli  reference  to  one  or  many  of 
his  productions,  "  His  work  shows  that  he 
is  ignorant  of  the  first  principles  of  art," 
or  perhaps,  if  clearly  understood  to  refer 
to  his  actual  works,  "  He  knows  nothing 
of  ai't,"  would  not  ordinarily  be  actionable 
per  se,  though  other  art  critics  of  stand- 
ing niiglit  entirely  differ  from  him.  But 
to  say  of  liim,  "  He  is  an  impostor,"  though 
said  of  his  art,  would  ordinarily  afl'ord  a 
ground  of  action.  The  recent  familiar 
case  of  Whistler  v.  Euskin,  referred  to  by 
the  author  on  p.  49,  may  be  cited  in  ton- 
firmation.  See  also  Keade  v.  Sweetzer, 
6  Abb.  Pr.  N.  S.  9,  note.  The  distinc- 
tion  between   the   two   cases   is  obvious. 


BONA   FIDE   COMjMENTS. 


*  Q( 


Illustrations. 

An  article  in  the  Saturday  Review  imputed  to  the  plaintiff,  the  editor  and  part 
proprietor  of  the  British  Ensign,  that  in  advocating  the  propagation  of  *  Chris-     *  40 
tianity  among  the  Chinese  his  purpose  was  merely  to  increase  the  circulation  of 
his  own  paper,  and  so  put  money  into  his  own  pocket  ;  that  he  was  an  impostor,  and 
that  he  put   forth  a  list  of  fictitious  subscribers  in  order  to  delude  others  into  sub- 


Both  may  be  criticism,  but  one  is  broad 
and  sweeping  and  fails  of  justification  in 
not  connecting  itself  with  any  ground  for 
the  hearer  or  reader  to  consider.  It  will 
be  apt  to  be  understood  as  vituperation  ; 
nor  will  the  fact  that  the  speaker  or  writer 
was  a  man  above  the  use  of  such  weapons 
go  for  anything.  Evidence  of  the  kind 
would  not  be  admissible.  The  other  charge 
is  based  upon  grounds  ;  and  thus,  so  far 
as  the  mere  language  goes,  no  inference  of 
vituperation  will  be  conveyed. 

Now  it  matters  not,  as  has  been  already 
stated,  that  others  erpially  competent  would 
pronounce  the  criticism  unsound.  It  would 
be  different  perhaps  if  there  were  a  known 
established  ideal  in  every  case  by  which 
judgment  was  to  be  pronounced  ;  but  there 
is  not.  Agreement  is  confined  in  matters 
of  criticism  to  a  few  fundamental  proposi- 
tions, whatever  the  subject  ;  beyond  this 
critics  differ  both  as  to  principles  and 
as  to  the  question  whether  particular 
productions  conform  to  principles  act- 
ually agreed  upon.  And  the  law  with 
good  sense  recognizes  and  justifies  this 
state  of  things.  Does  it  follow  then  that 
no  action  can  be  maintained  where  criti- 
cism of  the  productions  of  men  is  ex- 
pressed or  understood  to  be  founded  upon 
particular  grounds  ?  The  cases  unfortu- 
nately are  not  precise  upon  this  point  ; 
but  indications  are  not  wanting  that  the 
right  to  criticise,  even  in  this  way,  is 
not  unlimited.  It  has  lately  been  laid 
down  in  Massachusetts  that  "fair  and 
reasonable  "  comment  upon  the  property 
of  a  person  who  presents  the  same  for 
public  exhibition  is  proper  (however  se- 
vere), unless  such  comment  is  attended  with 
actual  malice.  Gott  v.  Pulsifer,  122  Mass. 
235.  See  also  Reade  v.  Sweetzer,  6  Abb. 
Pr.  N.  S.  9,  note.  The  plain  inference  is 
that  if  the  comment  or  criticism  be  not  fair 
and  reasonable,  or  if  it  be  actually  mali- 
cious, there  may  be  ground  for  an  action. 


"What  makes  criticism  "  fair  and  reason- 
able "  ?  We  have  seen  that  there  is  no 
established  ideal  to  serve  for  a  test,  and 
we  have  also  seen  that  the  law  permits  the 
finding  of  the  test  in  the  concejjtion  of  the 
speaker  or  writer.  Fairness  and  reason- 
ableness must  therefore  in  princi{)le  pre- 
sup[)Ose  some  ideal  of  truth  founded  upon 
a  rational  basis  (that  is,  a  basis  capable  of 
existence  in  reason)  ;  and  hence  if  none 
such  exist  in  the  party,  it  is  impossible  to 
speak  of  criticism,  though  stated  with  ref- 
erence to  particular  productions,  as  fair 
and  reasonable.  It  is  idle  talk,  or  if  mali- 
cious and  injurious  in  tendency,  actionable 
language.  But  supposing  the  qualifica- 
tion of  criticism  to  exist  in  the  individual 
(by  being  based  upon  a  rational  ideal),  the 
fairness  and  reasonableness  of  the  language 
in  (question  must  in  principle  (for  there  is 
no  definite  autliority  upon  the  point)  de- 
pend upon  the  question  whether  that  lan- 
guage is  truly  based  or  reasonably  sup- 
posed by  the  speaker  or  writer  to  be  based 
upon  that  ideal.  If  not,  the  criticism  is 
unreasonable,  and  in  a  legitimate  sense  it 
is  false,  and  ought  so  far  to  be  actionable. 
It  might  be  interesting  to  inquire  concern- 
ing the  burden  of  proof  of  this  fairness  ; 
but  it  would  probably  be  upon  the  defend- 
ant. Judging  from  ordinary  cases,  the 
severity  of  the  language  would  make  a 
iwima  facie  case  for  the  jdaintiff,  and  it 
would  then  devolve  upon  the  defendant  to 
prove  the  criticism  true  by  proving  it  to 
be  fair  and  reasonable  (in  the  manner  sug- 
gested). 

But  the  criticism  must  also  have  been 
malicious  ;  and  the  burden  of  proof  as  to 
this  is  doubtless  always  on  the  plaintiff. 
See  Gott  v.  Pulsifer,  122  Mass.  235  ;  also 
the  discussion  of  implied  malice,  ante, 
p.  5.  Malice  may  be  shown  by  evidence 
that  the  defendant  knew  that  his  criticism 
was  not  foundeil  upon  his  own  ideal ;  a 
fact  to  be  proved  in  most  cases  by  an  ad- 

37 


40 


DEFAMATORY   WORDS. 


scribing.  The  jury  found  that  the  writer  honestly  believed  the  imputations  contained 
in  the  article  to  be  well  founded,  but  the  Court  held  that  the  limits  of  fair  criticism  had 
been  undoubtedly  exceeded.  Campbell  v.  Spottiswoode,  3  F.  &  F.  421  ;  32  L.  J.  Q. 
B.   185  ;  3  L'..  k  S.  769  ;  9  Jur.  N.  S.  1069  ;  11  W.  K.  569  ;  8  L.  T.  201. 

Two  sureties  were  proposed  for  the  Berwick  election  petition  :  neither  of  whom  had 
any  connection  with  the  borough.  Affidavits  were  put  in  to  show  that  one  of  them 
was  an  insufficient  surety,  being  embarrassed  in  his  affairs.  The  Thnes  set  out  these 
affidavits  and  added  the  remarks,   "But  why,   it  may  be  asked,   does  this  cockney 


mission.  Or  as  stated  in  Gott  v.  Pulsifer, 
supra,  it  may  be  shown  by  the  excessive 
severity  of  the  language,  provided  (it  is 
safe  to  assume)  there  is  evidence  that  the 
criticism  was  unsound  as  judged  from  the 
principles  (the  ideal)  of  the  speaker  or 
writer.  Severity  of  criticism,  though 
deemed  by  others  excessive,  could  not  be 
sufficient  to  justify  an  action  when  based 
on  rational  principles,  as  explained  above. 
It  should  be  stated,  before  concluding  this 
part  of  the  present  note,  that  the  action  in 
Gott  V.  Pulsifer  was  for  slander  of  title, 
so  called,  the  language  being  not  criticism 
of  an  individual  professionally,  but  criti- 
cism upon  a  particular  article  of  property 
on  exhibition  ;  but  this  fact,  though  it  in- 
volved recjuiring  proof  of  special  damage, 
would  have  no  bearing  against  the  doctrine 
of  this  note. 

All  this  of  course  assumes  that  the 
criticism  does  not  touch  moral  character. 
When  the  critic  goes  outside  of  the  subject 
of  criticism  and  strikes  at  the  character  of 
the  person  whose  productions  he  professes 
alone  to  criticise  and  calls  him,  for  ex- 
ample, an  impostor,  then  he  renders  him- 
self liable  to  an  action  ;  unless  indeed  he 
can  show  that  the  imputation  is  true. 
Whistler  v.  Euskin  ;  Cooper  v.  Stone,  24 
Wend.  434  ;  Reade  v.  Sweetzer,  6  Abb.  Pr. 
N.  S.  9,  note.  Acting  honestly  upon  his 
own  conceptions  of  truth  as  already  ex- 
plained, the  critic  may  say  what  he  will 
of  the  merits  or  demerits  of  the  particular 
production  ;  thus  acting  he  may,  e.r/.,  pro- 
nounce an  author's  style  "execrable,"  or 
a  painter's  picture  a  "daub  and  an  abor- 
tion ;"  but  he  must  not  animadvert  in 
disparaging  language  upon  the  person's 
moral  character,  or  impute  to  him  un- 
worthy motives  or  evil  designs  upon  soci- 
ety, unless  he  is  prepared  to  justify  the 
same  by  showing  its  truth.  Reade  v. 
Sweetzer,  supra.  And  to  justify  unworthy 
motives  or  evil  designs,  the  party's  produc- 

38 


tions  should  in  a  reasonable  interpretation 
warrant  the  imputation  ;  as  by  presenting 
vice  as  an  object  of  attraction  or  not  to  be 
shunned.     lb. 

This  brings  us  to  criticism  of  moral 
character  generally,  in  regard  to  which  the 
English  doctrine  appears  to  be  that  one 
who  offers  his  character  to  the  public  (or 
perhaps  to  an  individual)  as  one  of  the 
elements  going  to  make  up  qualification 
for  position,  thereby  consents  to  having 
the  same  laid  before  those  who  aie  ex- 
pected to  engage  his  services  ;  and  by  this 
consent  he  is  deemed  to  be  barred  from 
complaining  of  wrong  estimates  and  false 
imputations  thereon,  if  it  appear  that  the 
permission  granted  has  not  been  abused. 
In  other  words  the  offer  justifies  any  im- 
putation upon  his  character  that  is  made 
in  good  faith  and  with  reasonable  belief  in 
its  truth.  See  Campbell  i;.  Spottiswoode, 
3  Best  &  S.  776 ;  supra,  p.  39.  The  rule 
appears  therefore  to  be  an  exemplifica- 
tion of  the  maxim  volenti  non  fit  injuria. 
Though  this  seems  to  be  a  perfectly  sound 
doctrine,  it  is  not  everj'where  or  generally 
held  in  this  country.  Thus  it  is  laid  down 
by  the  courts  of  New  York  that  no  privi- 
lege exists  to  attack  the  character  of  a 
public  officer,  though  the  publication  re- 
late to  a  public  act  of  the  party  done  in 
his  official  capacity.  Hamilton  v.  Eno,  81 
N.  Y.  116  ;  Lewis  I'.  Few,  5  Johns.  1  ;  Root 
V.  King,  7  Cowen,  613;  s.  c.  4  Wend.  113. 
Nor  is  it  permitted  in  New  York  to  make 
false  imputations  upon  the  character  of  a 
candidate  for  public  office;  and  belief  in  the 
truth  of  the  imputation  makes  the  defend- 
ant's case  no  better  except  by  way  of  miti- 
gation. Hamilton  v.  Eno  and  Root  v. 
King,  supra.  It  would  seem  that  the  case 
could  not  be  different  in  that  State  where 
the  imputation  was  made  in  the  course  of 
an  attempt  to  secure  the  removal  of  the  in- 
dividual from  office,  unless  the  language  was 
used  in  the  course  of  a  judicial  or  legislative 


BONA   FIDE   COMiEENTS. 


40 


tailor  take  all  this  trouble,  and  subject  himself  to  all  this  exposure  of  his  difficulties 
and  embarrassments  ?  He  has  nothing  to  do  with  the  borough  of  Berwick-upou- 
Tweed  or  its  members.  How  comes  it  then  that  he  should  take  so  much  interest  iu 
the  job  ?  There  can  be  but  one  answer  to  these  very  natural  and  reasonable  queries  : 
he  is  hired  fiv  tlw  occasion.  The  affair  in  fact  is  a  foul  job  throughout,  aud  it  is  only 
by  such  aid  that  it  can  possibly  be  supported."  In  an  action  brought  on  the  whole 
article,  the  defendant  pleaded  that  the  publication  was  a  correct  report  of  certain  legal 
proceedings,  "  together  with  a  fair  and  bond  fide  commentary  thereon."  But  the  jury 
thouglit  the  comment  was  not  fair,  and  gave  the  plaintiff  damages  £100.  Cooper  v. 
Lawson,  8  A.  &  E.  746  ;  1  P.  &  D.  15  ;  1  W.  W.  &  H.  601  ;  2  Jur.  919. 

The  plaintiff  was  ex-mayor  of  Winchester.     The  Hampshire  Advertiser  imputed  to 
him  partiality  and  corruption  and  ignorance  of  his  duties  as  mayor  and  justice  of  the 


proceeding.    In  such  a  case  as  that  it  would 
doubtless   be  absolutely  privileged  if  rel- 
evant.    Hastings  v.  Lusk,  22  Wend.  410. 
The  New  York  rule  against  imputations 
upon  the  moral  character  of  public  men  is 
followed  in  West  Virginia.      Sweeney  v. 
Baker,   13  W.  Va.   158.      Perhaps  so  in 
Michigan.     Bailey  v.  Kalamazoo  Pub.  Co., 
40    Jtlich.    251.      And   in    Massachusetts. 
Commonwealth  v.  Clap,  4  Mass.  103 ;  Cur- 
tis V.  Mussey,  6  Gray,  261.     And  in  other 
States.   See  cases  next  cited.    And  the  same 
would  no  doubt  be  generally  true  where 
the  imputation  was  not  made  with  the  pur- 
pose of  securing  the  rejection  of  a  candidate 
for  office  or  the  removal  of  a  person  actually 
in  office.     See  Commonwealth  v.  Clap,  4 
Mass.  163 ;  Curtis  v.  Mussey,  6  Gray,  261  ; 
Mayi-ant    v.   Richardson,  1  Nott  &  McC. 
347  ;    Aldrich   v.    Press    Printing   Co.,   9 
Minn.  133  ;  Seely  v.  Blair,  Wright,  358, 
683  ;   Barr  v.    Moore,  87  Penn.  St.  385  ; 
Kimball  v.  Fernandez,  41  Wis.  329  ;  Wil- 
son V.  Noonan,  35  Wis.  321  ;  s.  c.  27  Wis. 
598,  and  23  Wis.  105  ;  Cottrill  v.  Cramer, 
43  Wis.  242  ;  Scripps  v.  Foster,  41  Mich. 
742.     Some  of  our  cases  however  appear 
to  justify  the  converse  proposition,  and  to 
sustain   the    English   doctrine  where   the 
purpose  is  that  suggested,  and  it  is  prop- 
erly pursued  in  good  faith  and  upon  rea- 
sonable grounds.     Thus  in  New  Hampshire 
it  is  held  that  newspapers  may  in  good 
faith   {i.e.,  it  seems,  without  malice)  on 
reasonable   grounds   believed   to  be  true, 
affirm  a  maladministration  of  public  office 
by  an  individual.     Palmer  v.  Concord,  48 
N.  H.  211.      And  in  Iowa  candidates  for 
office  cannot  complain  of  false  charges  af- 
fecting their  moral  character  made  in  the 
like  manner.     Mott  v.  Dawson,  46  Iowa, 


533.  See  also  Scripps  v.  Foster,  41  Mich. 
742.  And  public  policy  seems  to  justify 
this  view  when  the  medium  used  is  a  proper 
one  to  accomplish  the  purpose  of  securing 
rejection  or  removal  ;  a  purpose  which 
should  be  of  the  essence  of  the  privilege. 
Tlie  newspapers  should  not  be  resorted  to 
when  not  the  necessary  or  natural  medium 
for  securing  such  purpose  ;  the  proper  au- 
thorities, and  they  alone,  should  be  com- 
municated with.  See  Foster  v.  Scripps,  39 
Mich.  376  ;  s.  c.  41  Mich.  742.  In  this 
case  it  was  held  that  a  city  physician  not 
elected  by  the  people  but  appointed  to 
office  by  a  municipal  board  could  not  be 
made  the  subject  of  defamatory  imputa- 
tions through  the  press,  though  the  im- 
putations were  made  in  good  faith  and 
honestly  believed  to  be  true.  See  also 
Purcell  V.  Sowler,  1  C.  P.  D.  781  ;  s.  c.  2 
C.  P.  D.  218,  where  in  a  similar  case  it  was 
held  that  the  privilege  arose  only  in  pro- 
ceedings against  the  physician.  Nor  is  a 
trustee  of  a  private  corporation  a  public 
officer  so  as  to  justify  tlie  publishers  of  a 
newspaper  in  using  defamatory  language 
of  him  as  trustee.  Wilson  v.  Fitch,  41 
Cal.  363.  As  is  held  also  in  England,  the 
mere  fact  that  the  subject  is  one  of  inter- 
est to  the  public  does  not  make  the  com- 
munication privileged,  thougli  it  was  pub- 
lished in  good  faith  without  malice  and 
from  laudable  motives.  lb. ;  Curtis  v.  Mus- 
sey, 6  Gray,  261.  The  New  York  and  West 
Virginia  cases  above  referred  to,  it  may  be 
observed,  do  not  proceed  upon  the  ground 
that  a  wrong  medium  has  been  employed 
and  the  wrong  persons  addressed,  but  on 
the  broad  ground  that  there  is  no  distinc- 
tion in  attacks  upon  moral  character  be- 
tween public  men  and  private  citizens. 

39 


*40  DEFAMATORY   WORDS. 

peace  for  the  borough.  Held  that  though  some  words  wliich  are  clearly  libellous  of  a 
private  person  may  not  amount  to  a  libel  when  spoken  of  a  person  holding  a  public 
capacity,  still  any  imputation  of  unjust  or  corrupt  motives  is  equally  libellous  in  either 
case.     Parraiter  v.  Coupland,  6  M.  &  W.  105  ;  9  L.  J.  Ex.  202  ;  4  Jur.  701. 

But  when  an  attack  is  made  on  the  policy  of  Her  Majesty's  Government  or  on  the 
public  conduct  of  any  high  officer  of  State,  it  appears  now  that  wicked,  or  at  least 
selfish,  motives  inrnj  be  imputed,  so  long  as  they  are  not  recklessly  and  maliciously 
imputed.  Per  Martin,  B.,  in  Harle  v.  Catherall,  14  L.  T.  801  ;  per  Cockburn,  C.  J., 
in  Wason  v.  Walter,  L.  R.  4  Q.  B.  93  ;  38  L.  J.  Q.  B.  34  ;  17  W.  R.  169  ;  19  L.  T. 
416  ;  8  B.  &  S.  730.     And  in  Campbell  v.  Spottiswoode,  ante,  p.  39. 

The  defendants,  the  printers  and  publishers  of  the  Manchester  Courier,  published 
in  their  paper  a  report  of  the  proceedings  at  a  meeting  of  the  board  of  guardians  for  the 
Altrincham  Poor-Law  Union,  at  which  charges  were  made  against  the  medi- 
*  41  cal  officer  of  the  union  workhouse  at  Knutsford,  *  of  neglecting  to  attend  the 
pauper  patients  when  sent  for.  Such  charges  proved  to  be  utterly  unfounded  ; 
they  were  made  in  the  absence  of  the  medical  officer,  without  any  notice  having  been 
given  him.  Held  that  the  matter  was  one  of  public  interest ;  but  that  the  report  was 
not  privileged  by  the  occasion,  although  it  was  admitted  to  be  a  correct  account  of 
what  passed  at  the  meeting  ;  that  it  was  obviously  unfair  to  the  plaintiff  that  such 
ex  ^arte  statements  should  be  published  in  the  local  papers;  that  the  editor  should 
therefore  have  exercised  his  discretion  and  excluded  the  report  altogether  ;  and  the 
plaintiff'  recovered  40s.  damages  and  costs.  Purcell  v.  Sowler  (C.  A. ),  2  C.  P.  D.  215  ; 
46  L.  J.  C.  P.  308  ;  25  W.  R.  362 ;  36  L.  T.  416. 

What  are  matters  of  public  interest  ? 

The  public  conduct  of  every  public  man  is  a  matter  of  public 
concern :  — 

"  A  clergyman  with  his  flock,  an  admiral  with  his  fleet,  a  gen- 
eral with  his  army,  and  a  judge  with  his  jury,  are  all  subjects  of 
public  discussion.  Whoever  fills  a  public  position  renders  him- 
self open  thereto.  He  must  accept  an  attack  as  a  necessary, 
though  unpleasant,  appendage  to  his  office."  ^ 

All  political,  legal,  and  ecclesiastical  matters  therefore  are  mat- 
ters of  public  concern.  So  is  the  conduct  of  every  vestry,  town 
council,  board  of  guardians,  &c.  For,  although  these  may  be 
matters  of  local  interest  principally,  still  this  rule  applies,  so 
long  as  they  are  not  -private  matters.  Anything  that  is  a  pub- 
lic concern  to  the  inhabitants  of  Birmingham  or  Manchester 
is  a  matter  of  public  interest  within  the  meaning  of  the  rule. 
See  the  remarks  of  Cockburn,  C.J.,  in  Cox  v.  Feeney.2  And 
again  in  Purcell  v.  Sowler,^  the  same  learned  judge  says; 
"  But  it  seems  to  me  that  whatever  is  matter  of  public  con- 

1  Per  Bramwell,  B.,  in  Kelly  -o.  Sherlock,  L.  R.  1  Q.  B.  689  ;  35  L.  J.  Q.  B.  209 ; 
12  Jur.  N.  S.  937.  2  4  F.  &  F.  13.  3  2  C.  P.  D.  218. 

40 


COMIMENTS   ON   STATE   AFFAIRS.  *  41 

cern  when  administered  in  one  of  the  government  departments, 
is  matter  of  public  concern  when  administered  by  tlie  subor- 
dinate authorities  of  a  particular  district.  It  is  one  of 
the  *  characteristic  features  of  the  government  of  this  *  42 
country  that,  instead  of  being  centralized,  many  important 
branches  of  it  are  committed  to  the  conduct  of  local  authorities. 
Thus  the  business  of  counties,  and  that  of  cities  and  boroughs, 
is,  to  a  great  extent,  conducted  by  local  and  municipal  govern- 
ment. It  is  not,  therefore,  because  the  matter  under  considera- 
tion is  one  which  in  its  immediate  consequences  affects  only  a 
particular  neighborhood  that  it  is  not  a  matter  of  public  concern. 
The  management  of  the  poor  and  the  administration  of  the  poor- 
law  in  each  local  district  are  matters  of  public  interest.  In  this 
management  the  medical  attendance  on  the  poor  is  matter  of 
infinite  moment,  and  consequently  the  conduct  of  a  medical  offi- 
cer of  the  district  may  be  of  the  greatest  importance  in  that 
particular  district,  and  so  may  concern  the  public  in  general." 

Matters  of  public  interest  may  be  conveniently  grouped  under 
the  following  heads  : — 

1.  Affairs  of  state  ; 

2.  The  administration  of  justice; 

3.  Public  institutions  and  local  authorities ; 

4.  Ecclesiastical  matters ; 

6.  Books,  pictures,  and  architecture  ; 

6.  Theatres,  concerts,  and  other  public  entertainments ; 

7.  Other  appeals  to  the  public. 

1.  Affairs  of  State. 

The  conduct  of  all  public  servants,  the  policy  of  the  Govern- 
ment, our  relations  with  foreign  countries,  all  suggestions  of 
reforms  in  the  existing  laws,  all  bills  before  Parliament,  the 
adjustment  and  collection  of  taxes,  and  all  other  matters  which 
touch  the  public  welfare,  are  clearly  matters  of  public  interest, 
which  come  within  the  preceding  rule.  "  Every  subject 
has  a  *  right  to  comment  on  those  acts  of  public  men  *  43 
which  concern  him  as  a  subject  of  the  realm,  if  he  do  not 
make  his  commentary  a  cloak  for  malice  and  slander."  ^  Those 
who  fill  "  a  public  position  must  not  be  too  thin-skinned  in  refer- 

1  Per  Parke,  B.,  in  Parmitcr  v.  Coupland,  6  M.  &  W.  108. 

41 


*  43  DEFAMATORY   WORDS. 

ence  to  comments  made  upon  them.  It  would  often  happen  that 
observations  would  be  made  upon  public  men  which  they  knew 
from  the  bottom  of  their  hearts  were  undeserved  and  unjust ;  yet 
they  must  bear  with  them,  and  submit  to  be  misunderstood  for  a 
time,  because  all  knew  that  the  criticism  of  the  press  was  the 
best  security  for  the  proper  discharge  of  public  duties."  ^ 

Illustrations. 

The  presentation  of  a  petition  to  Parliament  impugning  the  character  of  one  of  Her 
Majesty's  judges,  and  praying  for  an  inquiry,  and  for  his  removal  from  ofBce  should 
the  charge  prove  true,  is  a  matter  of  high  public  concern,  on  which  all  newspapers  may 
comment,  and  in  severe  terms.  So  is  the  debate  in  the  House  on  the  subject  of  such 
petition.  Wason  v.  Walter,  L.  E.  4  Q.  B.  73  ;  38  L.  J.  Q.  B.  34  ;  17  W.  E.  169  ; 
19  L.  T.  409  ;  8  B.  &  S.  730. 

A  writer  in  a  newspaper  may  comment  on  the  fact  that  corrupt  practices  extensively 
prevailed  at  a  parliamentary  election  ;  but  may  not  give  the  names  of  individuals  as 
guilty  of  bribery,  unless  he  can  prove  the  truth  of  the  charge  to  the  letter.  Wilson  v. 
Eeed  and  others,  2  F.  &  F.  149. 

The  presentation  of  a  petition  to  Parliament  against  quack  doctors  is  matter  for 
public  comment.     Dunne  v.  Anderson,  3  Bing.  88  ;  Ey.  &  Moo.  287  ;  10  Moore,  407. 

Evidence  given  before  a  Eoyal  Commission  is  matter  publici  juris,  and  everyone 
has  a  perfect  right  to  criticise  it.  Per  Wickens,  V.C,  in  Mulkern  v.  Ward,  L.  E. 
13  Eq.  622  ;  41  L.  J.  Ch.  464  ;  26  L.  T.  831. 

So  is  evidence  taken  before  a  Parliamentary  Committee  on  a  local  gas  bill.  Hedley 
V.  Barlow,  4  F.  &  F.  224. 

A  report  of  the  Board  of  Admiralty  upon  the  plans  of  a  naval  architect, 
'li     *  submitted  to  the  Lords  of  the  Admiralty  for  their  consideration,  is  a  matter 
of  national  interest.     Kenwood  v.  Harrison,  L.  E.  7  C.  P.  606  ;  41  L.  J.  C.  P. 
206  ;  20  W.  E.  1000  ;  26  L.  T.  938. 

The  appointment  of  a  Eoman  Catholic  to  be  Calendarer  of  State  Papers  is  a  matter 
of  public  concern.     Turnbull  v.  Bird,  2  F.  &  F.  508. 

The  plaintiff,  who  was  a  Q.  C.  and  a  Member  of  Parliament,  was  appointed  Eecorder 
of  Newcastle.  The  defendant's  paper,  the  Law  Magazine  and  Rcvieio,  thereupon  dis- 
cussed the  desirability  of  giving  such  an  appointment  to  a  member  of  the  House  of 
Commons,  and  declared  that  it  was  a  reward  for  his  having  steadily  voted  with  his 
party.  Cockburn,  C.J.,  directed  the  jury  that  a  public  writer  was  fairly  entitled  to 
comment  on  the  distribution  of  Government  patronage  ;  but  that  he  was  not  entitled 
to  assert  that  there  had  been  a  corrupt  promise  or  understanding  that  the  plaintiff 
would  be  thus  rewarded,  if  he  always  voted  according  to  order.  Verdict  for  the  plain- 
tiff ;  damages  40s.     Seymour  v.  Butterworth,  3  F.  &  F.  372. 

1  Per  Cockburn,  C.J.,  in  Seymour  v.  Butterworth,  3  F.  &  F.  376,  7  ;  and  see  the 
dicta  of  the  judges  in  E.  v.  Sir  E.  Carden,  5  Q.  B.  D.  1 ;  49  L.  J.  (M.  C.)  1 ;  28  W. 
E.  133  ;  41  L.  T.  504, 

42 


ADMINISTRATION   OF  JUSTICE.  *  44 


2.  Administration  of  Justice. 

The  administration  of  the  law,  the  verdicts  of  juries,  the  con- 
duct of  suitors  and  their  witnesses,  are  all  matters  of  lawful 
comment  as  soon  as  the  trial  is  over.  Any  comment  pending 
action  is  a  contempt  of  court,  by  whomsoever  made  ;  it  is  espe- 
cially so  where  the  comment  is  supplied  by  one  of  the  litigants 
or  his  solicitor  or  counsel.^ 

In  former  days,  where  a  trial  lasted  more  than  one  day,  news- 
papers were  sometimes  forbidden  to  publish  any  report  of  the 
trial  from  day  to  day ;  they  were  ordered  to  reserve  their  whole 
report  till  the  case  was  ended.  But  it  is  now  clear  that  daily 
reports  of  the  progress  of  the  trial  are  unobjectionable,  if  fair 
and  impartial.^  But  report  is  very  different  from  comment.  No 
observations  on  the  case  are  permitted  during  its  progress,  lest 
the  minds  of  the  jury  (and  indeed  of  the  judge)  should  be 
thereby  biassed. 

*  But  as  soon  as  the  case  is  over,  every  one  has  "  a  right  *  45 
to  discuss  fairly  and  bond  fide  the  administration  of  justice 
as  evidenced  at  this  trial.  It  is  open  to  him  to  show  that  error 
was  committed  on  the  part  of  the  judge  or  jury  ;  nay,  further, 
for  myself  I  will  say  that  the  judges  invite  discussion  of  their 
acts  in  the  administration  of  the  law,  and  it  is  a  relief  to  them  to 
see  error  pointed  out,  if  it  is  committed ;  yet,  whilst  they  invite 
the  freest  discussion,  it  is  not  open  to  a  journalist  to  impute  cor- 
ruption."^ "That  the  administration  of  justice  should  be  made 
a  subject  for  the  exercise  of  public  discussion  is  a  matter  of  the 
most  essential  importance.  But,  on  the  other  hand,  it  behoves 
those  who  pass  judgment,  and  call  upon  the  public  to  pass  judg- 
ment, on  those  who  are  suitors  to,  or  witnesses  in,  courts  of 
justice,  not  to  give  reckless  vent  to  harsh  and  uncharitable  views 
pf  the  conduct  of  others  ;  but  to  remember  that  they  are  bound 
^o  exercise  a  fair  and  honest  and  an  impartial  judgment  upon 
those  whom  they  hold  up  to  public  obloquy."  *  (a) 

1  Daw  V.  Eley,  L.  R.  7  Eq.  49  ;  38  L.  J.  Ch.  113  ;  17  W.  R.  245. 

2  Lewis  V.  Levy,  E.  B.  &  E.  537  ;  27  L.  J.  Q.  B.  282  ;  4  Jur.  N.  S.  970. 
8  Per  Fitzgerald,  J.,  in  R.  v.  Sullivan,  11  Cox  C.  C.  57. 

*  Cockburn,  C.J.,  in  Woodgate  v.  Ridout,  4  F.  &  F.  223. 

(a)  See  Scripps  v.  Reilly,  38  Mich.  10. 

43 


45  DEFAMATORY   AVORDS. 


Illustrations. 


It  is  not  a  fair  comment  on  a  criminal  trial,  to  suggest  that  the  prisoner,  though 
acquitted,  was  really  guilty.  Lewis  v.  "Walter,  4  B.  &  Aid.  605  ;  Eisk  Allah  Bey  v. 
Whitehurst  and  others,  18  L.  T.  615. 

A  newspaper  may  comment  upon  the  hearing  of  a  charge  of  felony  and  the  evidence 
produced  thereat,  and  discuss  the  conduct  of  the  magistrates  in  dismissing  the  charge 
without  hearing  the  whole  of  the  evidence ;  hut  it  may  not  proceed  to  disclose  "  evi- 
dence which  might  have  been  adduced"  and  thus  argue  from  facts  not  in  evidence 
before  the  magistrates  that  the  accused  was  really  guilty  of  the  felony.  Verdict  for  the 
plaintiff.  Damages  £25.  Hibbins  v.  Lee,  4  F.  &  F.  243  ;  11  L.  T.  541,  And  see 
Helsham  v.  Blackwood,  11  C.  B.  Ill  ;  20  L.  J.  C.  P.  187  ;  15  Jur.  861  ;  R.  v.  White 

and  another,  1  Camp.  359. 
*  46  *  It  is  not  a  fair  comment  on  any  legal  proceedings  to  insinuate  that  a  par- 

ticular witness  committed  perjury  in  the  course  of  them.  Roberts  v.  Brown, 
10  Bing.  519  ;  4  Moo.  &  S.  407  ;  Stiles  v.  Nokes,  S.  C.  Carr  v.  Jones,  7  East,  493  ; 
3  Smith,  491  ;  Littler  v.  Thompson,  2  Beav.  129  ;  Felkin  v.  Herbert,  33  L.  J.  Ch. 
294  ;  10  Jur.  N.  S.  02  ;  12  W.  R.  241,  332  ;  9  L.  T.  635. 

A  newspaper  may  comment  on  the  evidence  given  by  any  particular  witness  in  any 
inquiry  on  a  matter  of  public  interest ;  but  may  not  go  the  length  of  declaring  such 
evidence  to  be  "maliciously  or  recklessly  false."  Verdict  for  the  plaintiff.  Damages 
£250.     Hedley  v.  Bailow,  4  F.  &  F.  224. 

The  Morning  Post  published  an  article  on  a  trial  which  had  greatly  excited  public 
attention  ;  giving  a  highly  colored  account  of  the  conduct  of  the  attorneys  on  one 
side,  concluding  with  tlie  sweeping  condemnation:  —  "Messrs.  Quirk,  Gammon,  and 
Snap  were  fairly  equalled,  if  not  outdone,"  alluding  to  the  notorious  firm  of  pettifog- 
gers in  "  Ten  Thousand  a  Year.  '  This  account  of  jjlaintifTs  conduct  was  taken  almost 
verbatim  from  the  speech  of  counsel  on  the  other  side,  and  no  allusion  was  made  to  the 
evidence  subsequently  produced  to  rebut  his  statements.  Verdict  for  the  plaintiff. 
Damages  £1000.     Woodgate  v.  Ridout,  4  F.  &  F.  202. 


3.  Public  Institutions  and  Local  Authorities. 

The  working  of  all  public  institutions,  such  as  colleges,  hos- 
pitals, asylums,  homes,  is  a  matter  of  public  interest,  especially 
where  such  institutions  appeal  to  the  public  for  subscriptions,  or 
are  supported  by  the  rates,  or  are,  like  our  five  Universities, 
national  property.  The  management  of  local  affairs  by  the  vari- 
ous local  authorities,  e.g.,  town-councils,  schoolboards,  vestries, 
boards  of  guardians,  boards  of  health,  &c.,  is  a  matter  of  public, 
though  it  may  not  be  of  universal,  concern. 

Illustrations. 

"The  management  of  the  poor  and  the  administration  of  the  poor-law  in  each  local 
district  are  matters  of  public  interest."  Per  Cockburn,  C.J.,  in  Purcell  v.  Sowler, 
2  C.  P.  D.  218  ;  46  L.  J.  C.  P.  308  ;  25  W.  R.  362  ;  36  L.  T.  416. 

44 


CRITICISM  ON   BOOKS   AND   PICTURES.  *  46 

The  official  conduct  of  a  way-wai'den  may  be  freely  criticized  in  the  local  press. 
Harle  v.  Catherall,  14  L.  T.  801. 

*  The  Charity  Commissioners  sent  an  inspector  to  inquire  into  the  working  *  47 
of  a  medical  college  at  Birmingham.  He  made  a  report  containing  passages 
defamatory  of  the  plaintiff,  one  of  the  professors.  The  mismanagement  of  the  college 
continued,  and  increased.  The  warden  at  last  filed  a  bill  to  administer  the  funds  in 
Chancery.  Thereupon  the  defendant,  the  proprietor  of  a  local  paper,  procured  an  offi- 
cial copy  of  the  report  of  the  inspector,  and  published  it  verbatim  in  his  paper.  This 
was  nearly  three  years  after  the  report  had  been  written.  The  plaintiff  contended  tlmt 
this  was  a  wanton  revival  of  stale  matter  which  could  not  be  required  for  public 
information  ;  but  Cockburn,  C.J.,  left  it  to  the  jury  to  say  whether  public  interest  in 
the  matter  had  not  rather  increased  than  declined  in  the  interval.  Verdict  for  the 
defendant.     Cox  v.  Feeney,  4  F.  &  F.  13. 

4.  Ecclesiastical  Affairs. 

A  bishop's  government  of  his  diocese,  a  rector's  management 
of  his  parish,  or  of  the  parochial  school,  are  matters  of  public  in- 
terest. So  is  the  manner  in  which  "  public  worship  "  is  celebrated 
in  the  Established  Church.  But  an  unobtrusive  charitable  or- 
ganization privately  established  by  the  rector  in  the  parish  is  not 
a  fit  subject  for  public  comment. 

Illustrations. 

The  press  may  comment  on  the  fact  that  the  incumbent  of  a  parish  has,  contrary  to 
the  wishes  of  the  churchwarden,  allowed  books  to  be  sold  in  the  cliurch  during  service, 
and  cooked  a  chop  in  the  vestry  after  the  service  was  over.  Kelly  v.  Tinling,  L.  R.  1 
Q.  B.  699  ;  356  L.  J.  Q.  B.  231  ;  14  W.  R.  51  ;  13  L.  T.  255  ;  12  Jur.  N.  S.  910. 

But  where  a  vicar  started  a  clothing  society  in  his  parish,  expressly  excluding  all 
Dissenters  from  its  benefits,  it  was  held  that  this  was  essentially  a  private  society,  the 
members  of  which  might  manage  it  as  they  pleased,  without  being  called  to  account  by 
any  one  outside  ;  and  that  therefore  a  Dissenting  organ  was  not  justified  in  comment- 
ing on  the  limits  which  the  vicar  had  imposed  on  the  desire  of  his  parishioners  to  clothe 
the  poor.  Gathercole  v.  Miall,  15  M.  &  W.  319  ;  15  L.  J.  Ex.  179  ;  10  Jur.  337  ;  and 
see  Walker  v.  Brogden,  19  C.  B.  N.  S.  65  ;  11  Jur.  N.  S.  671  ;  13  W.  R.  809  ;  12  L. 
T.  495  ;  Booth  v.  Briscoe,  (C.  A.)  2  Q.  B.  D.  496  ;  25  W.  R.  838. 

The  court  in  Gathercole  v.  Miall  were  equally  divided  on   the  question 
whether  sermons  preached  in  open  church,  but  not  printed  and  published,*  w.'vc        *  48 
matter  for  public  comment.     If  the  sermon  itself  dealt  with  matters  of  pub- 
lic interest,  I  apprehend  it  might  be. 

5.  Books,  Pictures,  ^c. 

"A  man  who  publishes  a  book  challenges  criticism."  ^  There- 
fore all  fair  and  honest  criticism  on  any  published  book  is  not 
libellous,  unless  the  critic  goes  out  of  his  way  to  attack  the  pri- 

1  Per  Cockburn,  C.J.,  in  Strauss  v.  Francis,  4  F.  &  F,  1114 ;  15  L.  T.  675. 

45 


*  48  DEFA3IAT0RY  WOEDS. 

vate  character  of  the  author.  So  too  it  is  not  libellous  fairly  and 
honestly  to  criticise  a  painting  publicly  exhibited,  or  the  architec- 
ture of  any  public  building,  however  strong  the  terms  of  censure 
used  may  be. 

Illustrations. 

The  Jthcnmim  published  a  critique  on  a  novel  written  by  the  plaintiff,  describing  it 
as  "  the  veiy  worst  attempt  at  a  novel  that  has  ever  been  perpetrated,"  and  comment- 
ing severely  on  "  its  insanity,  self-complacency,  and  vulgarity,  its  profanity,  its  indeli- 
cacy (to  use  no  stronger  word),  its  display  of  bad  Latin,  bad  French,  bad  German,  and 
bad  English,"  and  its  abuse  of  persons  living  and  dead.  After  Erie,  C.J.,  had  summed 
np  the  case,  the  plaintiff  withdrew  a  juror.  Strauss  v.  Francis  (No.  1),  4  F.  &  F.  939  ; 
see  Sir  John  Carr  v.  Hood,  1  Camp.  355,  n. 

The  Athrnoiuin  thereupon  published  another  article  stating  their  reason  for  consent- 
ing to  the  withdrawal  of  a  juror,  which  was  in  fact  that  they  considered  the  plaintiff 
would  have  been  unable  to  have  paid  them  their  costs,  had  they  gained  a  verdict.  The 
plaintiff  thereupon  brought  another  action  which  was  tried  before  Cockburn,  C.J.,  and 
the  jury  found  a  verdict  for  the  defendants.  Strauss  v.  Francis  (No.  2),  4  F.  &  F. 
1107  ;  15  L.  T.  674. 

It  is  doubtful  how  far  a  book  printed  for  private  circulation  only,  may  be  criticized, 
rer  Pollock,  C.  B.,  in  Gathercole  v.  Miall,  15  M.  &  W.  334  ;  15  L.  J.  Ex.  179  ;  10  Jur. 
337. 

A  comic  picture  of  the  author  of  a  book,  as  author,  bowing  beneath  the  weight  of 
his  volume,  is  no  libel ;  though  a  personal  caricature  of  him  as  he  appeared  in  private 
life  would  be.     Sir  John  Carr  v.  Hood,  1  Camp.  355,  n. 

The  articles  which  appear  in  a  newspaper  and  its  general  tone  and  style  may 

*  49       be  the  subject  of  adverse  criticism,  as  well  as  any  other  literary  *  j)roduction  ; 

but  no  attack  should  be  made  on  the  private  character  of  any  writer  on  its 
staff.  Heriot  v.  Stuart,  1  Esp.  437  ;  Stuart  v.  Lovell,  2  Stark.  93  ;  Campbell  v.  Sjjot- 
tiswoode,  3  F.  &  F.  421  ;  32  L.  J.  Q.  B.  185  ;  3  B.  &  S.  769  ;  9  Jur.  N.  S.  1069  ;  11 
W.  R.  569  ;  8  L.  T.  201. 

The  greatest  art  critic  of  the  day  wrote  and  published  in  Fors  Clavigera  an  article 
on  the  pictures  in  the  Grosvenor  Galleiy,  in  which  the  following  passage  occurred  : 
"  Lastly,  the  mannerisms  and  errors  of  these  pictures  (alluding  to  the  pictures  of  Mr. 
Burne  Jones),  whatever  may  be  their  extent,  are  never  affected  or  indolent.  The  work 
is  natural  to  the  painter,  however  strange  to  us,  and  is  wrought  with  the  utmost  con- 
science of  care,  however  far  to  his  own  or  our  desire  the  result  may  yet  be  incomplete. 
Scarcely  as  much  can  be  said  for  any  other  pictures  of  the  modern  school ;  their  eccen- 
ti'icities  are  almost  always  in  some  degree  forced,  and  their  imperfections  gratuitously, 
if  not  impertinently,  indulged.  For  Mr.  Whistler's  own  sake,  no  less  than  for  the 
protection  of  the  purchaser,  Sir  Coutts  Lindsay  ought  not  to  have  admitted  works  into 
the  fallery  in  which  the  ill-educated  conceit  of  the  artist  so  nearly  approached  the  as- 
pect of  wilful  imposture.  I  have  seen  and  heard  much  of  cockney  impudence  before 
now,  but  never  expected  to  hear  a  coxcomb  ask  200  guineas  for  flinging  a  pot  of  paint 
in  the  public's  face."  The  jury  considered  the  words  "  wilful  imposture  "  as  just  over- 
.stepping  the  line  of  fair  criticism,  and  found  a  verdict  for  the  plaintiff ;  damages  one 
farthing.  Each  party  had  to  pay  his  own  costs.  Whistler  v.  Ruskin.  Times  for  Nov. 
26th  and  27tb,  1878  ;  Thompson  v.  Shackell,  Moo.  &  Mai.  187. 

The  plaintiff  was  a  professor  of  architecture  in  the  Royal  Academy.     The  defendant 

46 


APPEALS   TO   THE   PUBLIC.  *  49 

published  an  account  of  a  new  order  of  arcliitecture  called  "the  Bceotian,"  said  to  be 
invented  by  the  plaintiff,  whom  he  termed  "the  Bceotian  professor."  He  set  forth 
several  absurd  principles  as  the  rules  of  this  new  order,  illustrating  them  by  examples 
of  buildings  all  of  which  were  the  works  of  the  plaintiff.  The  jury,  under  the  direc- 
tion of  Lord  Tenterdeu,  C.  J.,  found  a  verdict  for  the  defendant.  Soane  v.  Knight, 
Moo.  &  Mai.  74. 

6.    Theatres,   Concerts,  and  Public  Entertainments. 

All  theatrical  and  musical  performances,  flower-shows,  public 
balls,  &c.,  may  be  freely  criticized,  provided  that  the  comments 
be  not  malevolent  or  flagrantly  unjust. 


50 


Illustrations. 

A  gentleman  wholly  unconnected  with  the  stage  got  up  what  he  called  "  a 
Dramatic  Ball."  The  company  was  disorderly  and  far  from  select.  No  *  actor 
or  actress  of  any  reputation  was  present  at  the  ball,  or  took  any  share  in  the 
arrangements.  The  Era,  the  special  organ  of  the  theatrical  profession,  published  an 
indignant  article,  commenting  severely  on  the  conduct  of  the  prosecutor  in  starting 
such  a  ball  for  his  own  profit,  and  particularly  in  calling  such  an  assembly  "  a  Dramatic 
Ball."  Criminal  proceedings  were  taken  against  the  editor  of  the  Era,  but  the  jury 
found  him  Not  guilty.  R.  v.  Ledger,  Times  for  Jan,  14th,  1880.  And  see  Dibdin  v. 
Swan  and  Bostock,  1  Esp.  28. 

A  newspaper,  commenting  on  a  flower-show,  denounced  one  exhibitor  by  name  as 
"  a  beggarly  soul,"  "  famous  in  all  sorts  of  dirty  work,"  and  spoke  of  "  the  tricks  by 
which  he  and  a  few  like  him  used  to  secure  prizes  "  as  being  now  "  broken  in  upon  by 
some  judges  more  honest  than  usual."  Such  remarks  are  clearly  not  fair  criticism  on 
the  flower-show.     Green  v.  Chapman,  4  Bing.  N.  C.  92  ;  5  Scott,  340. 

The  plaintiff,  the  proprietor  of  Zadkiel's  Almanac,  had  a  ball  of  crystal  by  means  of 
which  he  pretended  to  tell  what  was  going  on  in  the  other  world.  The  Daily  Telegraph 
published  a  letter  which  stated  that  the  plaintiff  had  "gulled"  many  of  the  nobility 
with  this  crystal  ball,  that  he  took  money  for  "  these  profane  acts,  and  made  a  good 
thing  of  it."  Cockburn,  C.  J.,  directed  the  jury  that  a  newspaper  might  expose  what 
it  deemed  an  imposition  on  the  public  ;  but  that  this  letter  amounted  to  a  charge  that 
the  plaintiff  had  made  money  by  wilful  and  fraudulent  misrepresentations,  a  charge 
which  should  not  be  made  without  fair  grounds.  Verdict  for  the  plaintiff.  Damages 
one  farthing.     Morrison  v.  Belcher,  3  F.  &  F.  614. 

7.    Other  Appeals  to  the  Public. 

Whenever  a  medical  man  brings  forward  some  new  method  of 
treatment,  and  advertises  it  largely  as  the  best  or  only  cure  for 
some  particular  disease,  or  for  all  diseases  at  once,  he  may  be 
said  to  invite  public  attention.  So  when  a  tradesman  distributes 
handbills  or  circulars,  he  challenges  public  criticism.  A  news- 
paper writer  is  justified  in  warning  the  public  against  such  ad- 
vertisers, and  in   exposing  the   absurdity  of  their  professions, 

47 


*50  DEFAMATORY  WORDS. 

provided  he  does  so  fairly  and  with  reasonable  moderation  and 
judgment. 

Again,  where  a  man  appeals  to  the  public  by  writing  letters 

to  the  newspaper,  either  to  expose  what  he  deems  abuses,  or  to 

call  attention  to  his  own  particular  grievances,  he  cannot 

*  51      complain  if  the  editor  inserts  other  *  letters  in  answer  to 

his  own,  refuting  his  charges,  and  denying  his  facts.  A 
man  who  has  commenced  a  newspaper  warfare,  cannot  complain 
if  he  gets  the  worst  of  it.  But  if  such  answer  goes  further,  and 
touches  on  fresh  matter  in  no  waj^  connected  with  the  plaintiffs 
original  letter,  or  unnecessarily  assails  the  plaintiffs  private 
character,  then  it  ceases  to  be  an  ansiver ;  it  becomes  a  counter- 
charge, and  if  defamatory  will  be  deemed  a  libel. 

So,  too,  when  a  man  comes  prominently  forward  in  any  way, 
and  acquires  for  a  time  a  quasi-^whWo,  position,  he  cannot  escape 
the  necessary  consequence,  the  free  expression  of  public  opinion. 
Whoever  seeks  notoriety,  or  invites  public  attention,  is  said  to 
challenge  public  criticism  ;  and  he  cannot  resort  to  the  law  courts, 
if  that  criticism  be  less  favorable  than  he  anticipated. 

Illustrations. 

A  medical  man  who  had  obtained  a  diploma  and  the  degree  of  3LD.  from  America 
advertised  most  extensively  a  new  and  infallible  cure  for  consumption.  The  Pull  Mall 
Gazette  published  a  leading  article  on  the  subject  of  such  advertisements,  in  wliich  they 
called  the  advertiser  a  quack  and  an  impostor,  and  compared  him  to  "scoundrels  who 
pass  bad  coin."  The  jury  gave  the  plaintiff"  one  farthing  damages.  Hunter  v.  Sharpe, 
4  F.  &  F.  983  ;  15  L.  T.  421.  And  see  Morrison  and  another  v.  Harmer  and  another, 
3  Bing.  N.  C.  759  ;  4  Scott,  524  ;  3  Hodges,  108. 

A  marine  store  dealer  extensively  circulated  a  handbill  setting  forth  the  high  prices 
he  was  prepared  to  give  for  kitchen  stuff",  rags,  bones,  oilcloth,  brass,  copper,  lead,  plated 
metals,  horsehair,  and  old  clothes.  An  alderman  sitting  as  magistrate  at  Guildhall 
denounced  this  handbill  as  ofi"ering  great  inducements  to  servants  to  rob  their  masters. 
The  alderman's  remarks,  together  with  the  handbill  itself  verbatim,  were  published  in 
the  JDaily  Tclecp-aph,  with  a  heading  "  Encouraging  Servants  to  Rob  their  Masters  ;" 
and  also  a  leading  article  in  the  same  strain.  The  jury  under  the  direction  of  Erie, 
C.J.,  found  a  verdict  for  the  defendant.  Paris  v.  Levj-,  9  C.  B.  N.  S.  342;  30  L.  J. 
C.  P.  11  ;  3  L.  T.  324  ;  9  W.  R.  71  ;  7  Jur.  N.  S.  289  ;  and  (at  Nisi  Prius)  2  F.  &  F. 
71.  And  see  Eastwood  v.  Holmes,  1  F.  &  F.  347  ;  Jenner  and  another  v.  A'Beckett, 
L.  R.  7  Q.  B.  11  ;  41  L.  J.  Q.  B.  14  ;  20  W.  R.  181  ;  25  L.  T.  464. 

Two  clergjTnen  were  engaged  in  a  controversy  ;  one,  the  plaintiff",  wrote 

*  52       *a  pamphlet  ;   subsequently  he  published  a  "collection  of  opinions  of  the 

press  "  on  his  own  pamphlet,  including  an  inaccurate  or  garbled  extract  from 
an  article  which  had  appeared  in  the  defendant's  newspaper.  The  defendant  thereupon 
felt  it  his  duty  in  justice  to  the  other  clergyman  to  publish  an  article  in  his  newspaper 

48 


SLANDER.  *  52 

exposing  the  inaccuracy  of  the  extract  as  given  by  the  plaintiff,  and  accusing  him  of 
purposely  adding  some  passages  and  suppressing  others,  so  as  to  entirely  alter  the  sense. 
Erie,  C.  J.,  pointed  out  to  the  jury  that  the  defendant  was  maintaining  the  truth,  and 
that  although  he  was  led  into  exaggerated  language,  the  plaintiff  had  also  used  exagger- 
ated language  himself.  Verdict  for  the  defendant.  Hibbs  v.  Wilkinson,  1  F.  &  F. 
608. 

But  where  the  editor  of  the  Lancet  attacked  the  editor  of  a  rival  paper.  The  London 
Medical  and  Phijsical  Journal,  by  rancorous  aspersions  on  his  private  character,  the 
plaintiff  recovered  a  verdict,  damages  £5.     Macleod  v.  Wakley,  3  C.  &  P.  311. 

So  wherever  a  man  calls  public  attention  to  his  own  grievances  or  those  of  his  class, 
whether  by  letters  in  a  newspaper,  by  speeches  at  public  meetings,  or  by  the  publica- 
tion of  pamphlets,  he  must  expect  to  have  his  assertions  challenged,  the  existence  of 
his  grievances  denied,  and  himself  ridiculed  and  denounced.  Odger  v.  IMortimer,  28 
L.  T.  472  ;  Kai^nig  v.  Ritchie,  3  F.  &  F.  413  ;  R.  v.  Veley,  4  F.  &  F.  1117  ;  O'Don- 
oghue  V.  Hussey,  Ir.  R.  5  C.  L.  124  ;  Dwyer  v.  Esmonde,  2  L.  R.  (Ir.)  243. 

But  where  the  defendant  in  answering  a  letter  which  the  plaintiff  has  sent  to  the 
paper,  does  not  confine  himself  to  rebutting  the  plaintiffs  assertions,  but  retorts  upon 
the  plaintiff  by  inquiring  into  his  antecedents,  and  indulging  in  other  uncalled  for  per- 
sonalities, the  defendant  will  be  held  liable  ;  for  such  imputations  are  neither  a  proper 
answer  to,  nor  a  fair  comment  on,  the  plaintiff's  speech  or  letter.  Murphy  v.  Halpin, 
Ir.  R.  8  C.  L.  127. 

Three  clergymen  of  the  Church  of  England  residing  near  Swansea,  being  Conserva- 
tives, chose  to  attend  a  meeting  of  the  supporters  of  the  Liberal  candidate  for  Swansea; 
they  behaved  in  an  excited  manner,  hissed  and  interrupted  the  speakers,  and  had 
eventually  to  be  removed  fiom  the  room  by  two  policemen.  Held  that  such  conduct 
might  fairly  be  commented  on  in  the  local  newspapers  ;  and  that  even  a  remark  that 
"  appearances  were  certainly  consistent  with  the  belief  that  they  had  imbibed  rather 
freely  of  the  cup  that  inebriates  "  was  not,  under  the  circumstances,  a  libel.  Davis  V. 
Duncan,  L.  R.  9  C.  P.  396 ;  43  L.  J.  C.  P.  185 ;  22  W.  R.  575 ;  30  L.  T.  464. 


*PART  11.  *53 

SLANDER. 

Words  which  are  clearly  defamatory  when  written  and  pub- 
lished may  not  be  actionable  when  merely  spoken  ;  for  then 
other  considerations  apply.  The  reasons  for  the  distinction  liave 
been  already  discussed.^  Spoken  words  are  defamatory  whenever 
special  damage  has  in  fact  resulted  from  their  use.  Spoken  words 
are  also  defamatory  when  the  imputation  cast  by  them  on  the 
plaintiff  is  on  the  face  of  it  so  injurious  that  the  Court  will  pre- 
sume, without  any  proof,  that  his  reputation  must  be  impaired 
thereby.     And  the  Court  will  so  presume  in  three  cases  :  — 

1  Ante,  pp.  3-5,  c.  \. 

4  49 


53 


DEFAMATORY   WORDS. 


I.  Where  the  words  charge  the  plaintiff  with  the  commission 

of  some  indictable  offence  ;  or, 
II.  Impute  to  him  a  contagious  or  infectious  disease  tending  . 
to  exclude  him  from  society  ;  or, 
III.  Are  spoken  of  him  in  the  way  of  his  oflBce,  profession,  or 

trade. 
In  no  other  case  are  spoken  words  defamatory,  unless  they  have 
caused  some  special  damage  to  the  plaintiff,  (a) 

*  54        *  I.    IVhere  the  words  impute  an  indictable  offence. 

Spoken  words,  which  impute  that  the  plaintiff  has  been  guilty 
of  an  indictable  offence,  are  actionable  without  proof  of  special 
damage,  (b)  If  the  offence  imputed  be  not  indictable,  but  only 
punishable  summarily  before  a  magistrate  by  penalty  or  fine,  the 
words  will  not  be  actionable  per  se.  (e) 

If,  however,  there  he  any  offences  which  are  not  indictable,  but  for 
which  a  magistrate  can  infhct  imprisonment  with  hard  labor  in  the  first 
instance  (not  merely  in  default  of  payment  of  a  fine  imposed),  I  apprehend 
that  to  impute  such  an  offence  to  the  plaintiff  would  be  actionable  ;per  se. 
Words  imputing  to  a  licensed  victualler  that  he  had  been  guilty  of  an 

V.  Wright,  2  HUl,  320;  Klumph  v.  Dunn,  66 
Penn.  St.  141  ;  Montgoraeiy  v.  Deeley,  3 
Wis.  709  ;  Johnson  v.  Dicken,  25  Mo. 
580  ;  Poe  v.  Grever,  3  Sneed,  664  ;  Shipp 
V.  McCraw,  3  Murph.  403.  See  Wall  v. 
Hoskins,  5  Ireil.  177.  But  see  Bundy  v. 
Hart,  46  ilo.  460.  So  too  if  the  words  be 
actionable  where  spoken  they  are  actionable 
eveiywliere.  Dufresne  v.  Weise,  46  Wis. 
290.  And  it  matters  not  that  redress  in 
the  foreign  State  in  which  the  offence  is 
stated  to  have  been  committed  has  become 
barred  by  limitation.  Van  Ankin  v.  West- 
fall,  14  Johns.  233.  But  words  published 
in  another  State  of  an  otfenee  not  indictable 
there  are  not  actionable  elsewhere  though 
the  oli'euce  be  elsewhere  indictable. 
Klumph  V.  Dunn,  supra ;  Barclay  v. 
Tliompson,  2  Penn.  148  ;  Stout  v.  Wood, 
1  Blackf.  71  ;  Offuttj;.  Earlywine,  4  Blackf. 
460  ;  Linville  v.  Earlywine,  ib.  469  ;  Lang- 
don  V.  Young,  33  Vt.  136  ;  Sparrow  v. 
Maynard,  8  Jones,  195  {scd  quccre  if  this 
case  does  not  go  too  far).  Words  imputing 
a  purely  military  offence  are  not  actionable 
without  special  damage.  Hollingsworth  v. 
Shaw,  19  Ohio  St.  430. 


(a)  In  Soutli  Carolina  it  has  been  action- 
able to  call  a  white  man  or  his  wife  a 
mulatto.  Eden  v.  Lcgare,  1  Baj',  171  ; 
Atkinson  v.  Hartley,  1  McCord,  203  ;  King 
V.  Wood,  1  Nott  &  JI.  184.  Sccus  in 
North  Carolina  :  McDowell  v.  Bowles,  8 
Jones,  184.  And  in  Ohio  :  Barret  v.  Jar- 
vis,  1  Ohio,  83,  note  ;  and  see  Castleberry 
V.  Kelly,  26  Ga.  606.  In  Pennsylvania 
it  has  been  held  actionable  to  charge  a  man 
with  being  a  vagrant.  Miles  i'.  Oldtield, 
4  Yeates,  423.  So  in  Ohio  to  call  a  woman 
a  hermaphrodite.  Malone  v.  Stewart,  15 
Ohio,  319. 

(b)  If  the  words  are  that  the  iilaintiff 
"or  somebody  else"  has  committed  the 
offence,  it  is  said  that  they  are  not  action- 
able per  se.  Ingalls  v.  Allen,  1  Breese, 
233  (sed  qucere). 

(c)  See  i)ost,  p.  84,  note.  Words  ])ub- 
lished  in  the  State  of  the  forum  which 
impute  the  commission  of  a  common  law 
indictable  offence  in  another  State  are  ;;rz- 
md  facie  actionable  ^;cr  se,  and  it  need  not 
be  shown  that  the  offence  is  indictable  in 
the  sister  State.  Stout  v.  Wood,  1  Blackf. 
71;  Hull  V.  Vreeland,  42  Barb.  543  ;  Lister 

50 


WORDS   IMPUTING   A  CRIME.  *  54 

offence  against  the  Licensing  Acts  "would  be  actionable  as  spoken  of  him 
in  the  way  of  his  trade  :  and  so  would  words  spoken  of  a  dairyman  or 
grocer  falsely  alleging  that  he  had  been  convicted  under  the  Sale  of  Food 
and  Drugs  Act,  1875.  Holt,  C.J.,  in  Ogden  v.  Turner,^  lays  it  down  that 
every  charge  of  treason  or  felony  is  actionable,  but  not  every  charge  of 
misdemeanor,  only  of  such  as  entail  a  "  scandalous  "  and  "  infiimous  "  pun- 
ishment. But  what  misdemeanors  are  included  in  the  terms  "scandalous" 
or  •'  infamous,"  or,  rather,  what  misdemeanors  are  not  included  1  (a)  The 
epithets  appear  to  me  to  mean  nothing  more  than  that  the  charge  must  be 
of  such  a  nature  that,  if  believed,  it  would  impair  the  reputation  of  the 
person  accused.  If  so,  this  would  include  all  indictable  misdemeanors,  ex- 
cept, perhaps,  such  semi-civil  proceedings  as  an  indictment  for  the  obstruc- 
tion or  non-repair  of  a  highway.  The  word  "  infamous  "  clearly  cannot 
now  be  taken  in  its  strictest  legal  sense  to  signify  a  punishment  which 
renders  the  person  convicted  incapable  of  giving  evidence  in  the  law  courts.^ 
In  Lady  Cockaine's  case  ^  the  argument  of  the  judge  seems  to  imply  that 
words  are  actionable  which  impute  to  the  plaintiff  an  act  which  would  be 
cause  to  bind  her  over  to  good  behavior  :  but  I  can  find  no  other  authority 
for  such  a  doctrine. 

*  Illustrations.  *  55 

A  general  ctarge  of  felony  is  actionable,  though  it  does  not  specify  any  particu- 
lar felony.     £.g.  : 

"  If  you  had  had  your  deserts,  you  would  have  been  hanged  before  now."  Donne's 
Case,  Cro.  Eliz.  62. 

"  He  deserves  to  have  his  ears  nailed  to  the  pillory."  Jenkinson  r.  Mayne,  Cro. 
Eliz.  384  ;  1  Vin.  Abr.  415. 

"  You  have  committed  an  act  for  which  I  can  transport  you."  Curtis  v.  Curtis,  10 
Bing.  477  ;  3  M.  &  Scott,  819  ;  4  M.  &  Scott,  337. 

"  You  have  done  many  things  for  which  you  ought  to  be  hanged,  and  I  will  have 
you  hanged."     Francis  v.  Roose,  3  M.  &  W.  191  ;  1  H.  &  H.  36. 

So  are  all  charges  of  specific  felonies.     E.g. :  {  ) 

•   1  6  Mod.  104  ;  Holt,  40  ;  2  Salk.  696. 
2  See  the  remarks  of  Grey,  C.J.,  in  Onslow  v.  Home,  3  Wils.  186  ;  2  W.  Bl.  753. 
8  Cro.  Eliz.  49. 

(«)  It  is  actionable  falsely  to  charge  up-  burnt,  destroyed,   and  suppressed  a  Avill. 

on  the  plaintiff  a  removal  of  defendant's  O'Hanlon   v.  Myers,    10    Kich.   128.      To 

landmarks.     Young  v.  Miller,  3  Hill,  21  ;  charge  a  town  clerk  falsely  with  destroying 

Todd  V.  Rough,   10  Serg.  &  R.  18.     And  votes  is  actionable  joer  sc  in  Massachusetts, 

see  Dial  v.  Holter,  6   Ohio  St.  228  ;  Wil-  Doddsr.  Henry,  9  Mass.  262.    So  to  charge 

liaras  V.  Karnes,  4  Humph.  9.     For  other  one  with  girdling  and  destroying  ajiple- 

cases  in  which  misdemeanors  falsely  im-  trees.     Murray  v.  JIcAllister,  38  Vt.  167. 
puted  are  held  actionable,  see  Perdue  v.  (b)   Abortion.     ]\liles  v.   Yauhorn,   17 

Burnett,  Minor,  138  ;  Alexander  v.  Alex-  Ind.  245  (charged  upon  unmarried  female) ; 

ander,  9  Wend.   141  ;    Smith  v.  Smith,  2  Bissell  v.  Cornell,  24  Wend.  354.    But  see 

Sneed,  473  ;  Johnson  v.  Shields,  1  Dutch.  Smith  v.  Gati'ard,  31  Ala.  45  ;  Hatfield  v. 

116.     It  is  held  not  actionable  in  South  Gano,  15  Iowa,  177. 


Carolina  falsely  to  charge  one  with  having 


51 


oo 


DEFAMATORY   WORDS. 


Assault  with  inteut  to  rob  :  (a)  —  Lewknor  v.  Cruchley  and  wife,  Cro.  Car.  140. 

Attempt  to  murder  :  —  Scot  et  ux.  v.  Hilliar,  Lane,  98  ;  1  Yin.  Abr.  440 ;  Preston 
V.  Finder,  Cro.  Eliz.  308. 

Attempt  to  rob  :  —  Sir  Harbert  Croft  v.  Brown,  3  Buls.  167. 

Bigamy  :  (h)  —  Heming  et  ux.  v.  Power,  10  M.  &  W.  564  ;   Delany  v.  Jones,  4  Esp. 
190. 
^*  Burglary  :  —  Somers  v.  House,  Holt,  39.  (c) 

Demanding  money  with  menaces  :  —  Neve  v.  Cross,  Sty.  350. 

Embezzlement :  (rf)— Williams  v.  Stott,  1  C.  &  M.  675  ;  3  Tyrw.  688. 

Forgery  :  (e)  —  Baal  v.  Baggerley,  Cro.  Car.  326  ;  Jones  v.  Heme,  2  Wils.  87.  (/) 

Larceny  :  —  Foster  v.  Browning,  Cro.  Jac.  688  ;  Baker  v.  Pierce,  2  Ld.  Raym. 
959  ;  Holt,  654  ;  6  Mod.  23  ;  2  Salk.  695  ;  Slowmau  v.  Dutton,  10  Bing.  402  ;  Tora- 
linson  v.  Brittlebank,  4  B.  &  Ad.  630  :  1  N.  &  M.  455.  {(f) 

Manslaughter  :  —  Ford  v.  Primrose,  5  D.  &  R.  287  ;  Edsall  v.  Russell,  4  M.  &  G. 
1090  ;  5  Scott,  N.  R.  801  ;  2  D,  N.  S.  641  ;  12  L.  J.  C.  P.  4  ;  6  Jur.  996. 

Murder: — Peake  v.   Oldham,  Cowp.   275;   s.  c.  sub  nom.   Oldham  v.  Peake,   2 
W.  Bl.  959  ;  Button  v.  Hayward,  8  Mod.  24.  (h) 
*  56  *  Receiving  stolen  goods,  knowing  them  to  have  been  stolen  :  —  Brigg's  Case, 

God.  157.     Clarke's  Case  de  Dorchester,  2  RoUe's  Rep.  136  ;  AKred  v.  Farlow, 
8  Q.  B.  854  J  15  L.  J.  Q.  B.  258  ;  10  Jur.  714. 

Robbery  :  {i)  —  Lawrence  v.  Woodward,  Cro.  Car.  277  ;  1  Roll.  Abr.  74  ;  Rowcliffe 
V.  Edmonds  et  ux.,  7  M.  &  W.  12  ;  4  Jur.  684.  (j) 

Treason:  —  Sir  William  Waldegrave  v.  Ralph  Agas,  Cro.  Eliz.  191;  Stapleton  v. 
Frier,  Cro.  Eliz.  251 ;  Fry  v.  Came,  8  Mod.  283. 


(a)  Sccus  of  a  charge  of  assault  and 
battery,  though  of  an  aggravated  nature. 
Dudley  v.  Horn,  21  Ala.  379  ;  Billings  v. 
Wing,  7  Vt.  439  ;  Andres  v.  Koppenheaver, 
3  Serg.  &  R.  255  ;  Speaker  v.  McKenzie, 
26  Mo.  255  ;  Birch  v.  Benton,  lb.  153. 

(b)  Parker  v.  Meader,  32  Vt.  300.  Bri- 
bery ;  Gibbs  v.  Dewey,  5  Cowen,  503. 

(c)  Countei-feiting.  Thirman  v.  Ma- 
thews, 1  Stewt.  384  ;  Church  v.  Bridgman, 
6  ilo.  190  ;  Howard  v.  Stephenson,  2  Mill, 
408. 

(d)  What  amounts  to  a  charge  of  em- 
bezzlement, see  Parke  v.  Piedmont  Ins. 
Co.,  51  Ga.  511  ;  Taylor  v.  Short,  40  Ind. 
506  ;  Johnson  v.  Brown,  13  W.  Va.  71, 
107  ;  Johnson  v.  Shields,  1  Dutch.  116; 
Goodrich  V.  Hooper,  97  Mass.  1.  A  charge 
of  embezzlement  of  goods  was  held  not 
actionable  in  Caldwell  v.  Abbey,  Hard. 
529.  As  to  a  charge  of  felonious  breach  of 
trust,  see  Allen  v.  Hillman,  12  Pick.  101  ; 
Rodgers  v.  Rodgers,  11  Heisk.  757  ;  Gill 
V.  Bright,  6  T.  B.  Mon.  130.  "  Pilfering." 
Beckett  v.  Sterrett,  4  Blackf.  499. 

(c)  Hotchkiss  v.  Olmstead,  37  Ind.  74  ; 
Atkinson  v.  Reding,  5  Blackf.  39  ;  Alex- 

62 


ander  v.  Alexander,  9  Wend.  141.  What 
constitutes  a  charge  of  forgery.  lb.  ;  Ar- 
nold V.  Cost,  3  Gill  &  J.  219  ;  Gay  ■!;.  Homer, 
13  Pick.  535.  To  charge  with  having  no 
authority  to  sign  his  name  to  a  note  is  not 
actionable  if  the  charge  was  made  to  the 
payee.  Andrews  v.  Woodmansee,  15  Wend. 
232.    See  also  Mills  v.  Taylor,  3  Bibb,  469. 

(/)  Kidnapping.  Nash  v.  Benedict,  25 
Wend.  645. 

(g)  Porter  v.  Choen,  60  Ind.  338  ;  Hart 
V.  Coy,  40  Ind.  553  ;  Ward  v.  Colyhan,  30 
Ind.  395  ;  Fawsett  v.  Clark,  48  Md.  494  ; 
Hayes  v.  Ball,  72  N,  Y.  418  ;  Georgia  v. 
Kepford,  45  Iowa,  48  ;  Wing  v.  Wing,  66 
Maine,  62  ;  Allen  v.  Hillman,  12  Pick. 
101  ;  Dunnell  v.  Fiske,  11  Met.  551  ; 
Edgerly  v.  Swain,  32  X.  H.  478  ;  Tillman  v. 
Willis,  61  Ga.  433  ;  Rodgers  v.  Rodgers, 
11  Heisk.  757.     See  2)ost,  p.  122,  note. 

(/i)  "Hireling  murderer"  in  writing. 
Smith  V.  State,  32  Texas,  594. 

(i)  Filber  v.  Dantermann,  28  Wis.  134. 
Of  themail.  Jonesv. Chapman, 5  Blackf.  88. 

(j)  Smuggling.  StilweU  v.  Bai'ter,  19 
Wend.  487. 


WORDS   EMPUTIXG   A  CREME.  *  56 

Unnatural  offences  :  —  Woolnoth  v.  Meadows,  5  East,  463  ;  2  Smith,  28  ;  Colnian  v. 
Godwin,  3  Dougl.  90  ;  2  B.  &  C.  285  (n). 

So  it  is  actionable  without  jn'oof  of  special  damage  to  charge  another  with  the  com- 
mission of  the  following  misdemeanors  :  — 

Bribery  and  corruption  :  —  Bendish  v.  Lindsay,  11  ilod.  194.  («) 

Conspiracy  :  —  Tibbott  v.  Haynes,  Cro.  Eliz.  191. 

Keeping  a  bawdy-house  :  —  Anonymous,  Cro.  Eliz.  643  ;  Braj'ne  v.  Cooper,  5  M.  & 
W.  249  ;  Huckle  v.  Reynolds,  7  C.  B.  N.  S.  114.  (6) 

Libel :  —  Sir  William  Russell  v.  Ligon,  1  Roll.  Abr.  46  ;  1  Yin.  Abr.  423.  (c) 

Perjury  :  —  Ceeley  v.  Hoskins,  Cro.  Car.  509  ;  Holt  v.  Seholefield,  6  T.  R.  691  ; 
Roberts  v.  Camden,  9  East,  93.  {d)  Even  in  an  Ecclesiastical  Court,  Shaw  i'.  Thompson, 
Cro.  Eliz.  609.  (c) 

Soliciting  another  to  commit  a  crime  :  —  Sir  Thomas  Cockaine  and  wife  v.  Witnam, 
Cro.  Eliz.  49  ;  Leversage  v.  Smith,  Cro.  Eliz.  710  ;  Tibbott  v.  Haynes,  Cro.  Eliz.  191  ; 
Passie  v.  Mondford,  Cro.  Eliz.  747.     But  see  Eaton  v.  Allen,  4  Rep.  16  ;  Cro.  Eliz.  684. 

Subornation  of  perjury  : —  Guerdon  v.  Winterstud,  Cro.  Eliz.  308  ;  Harris  v.  Dixon, 
Cro.  Jac.  158  ;  Bridges  v.  Playdel,  BrownL  &  Golds.  2  ;  Harrison  v.  Thornborough, 
10  Mod.  196 ;  Gilbert's  Cases  in  Law  and  Eq.  114. 

Where  the  words  impute  merely  a  trespass  in  pursuit  of  game,  punishable 
primarily  by  fine  alone,  no  action  lies  without  proof  of  special  damage,  *  although      *  57 
imprisonment  in  the  pillory  may  be  inflicted  in  default  of  pajmient  of  the  fine 
(3  Wm.  &  M.  c.  10).     Ogden  v.  Turner  (1705),  6  Mod.  104  ;  Salk.  696  ;  Holt,  40.  (/) 

[Certain  dicia  in  this  case  which  appear  to  go  further,  were  disapproved  of  by  Grey, 
C.J.,  in  3  Wils.  186,  and  must  be  now  considered  as  bad  law.] 

Where  the  words  imputed  an  offence  against  the  Fishery  Acts,  punishable  onlj'  hy 
fine  and  forfeiture  of  the  nets  and  instruments  used:  Udd  that  no  action  lay  without 
proof  of  special  damage.  McCabe  v.  Foot,  18  Ir.  Jur.  (Vol.  xi.  K.  S.)  287;  15  L.  T. 
115. 

To  state  that  criminal  proceedings  are  about  to  be  taken  against  the  plaintiff  (e.g. 
that  the  Attorney-General  had  directed  a  certain  attorney  to  prosecute  him  for  per- 
jury) is  actionable,  although  the  speaker  does  not  expressly  assert  that  the  plaintiff  is 
guilty  of  the  charge.  Roberts  v.  Camden,  9  East,  93  ;  Tempest  v.  Chambers,  1  Stark. 
67;  contra,  Harrison  v.  King,  4  Price,  46  ;  7  Taunt.  431  ;  1  B.  &  Aid.  161. 

Words  which  merely  impute  a  criminal  intention,  not  yet  put  into  action,  are  not 
actionable,  [cj)     Guilty  thoughts  are  not  a  crime.     But  as  soon  as  any  step  is  taken  to 

(a)  Hand  v.  Winton,  9  Vroom,  122,  Robbing,  12  Mass.  498  ;  Wood  v.  South- 
bribery  charged  upon  a  politician  for  offer-  wick,  97  Mass.  354  ;  Crone  v.  Angell,  14 
ing  a  certain  resolution  in  a  political  meet-  Mich.  340 ;  Crawford  v.  Melton,  20  Miss, 
ing.     Post,  p.  71.  328  ;  Persilly  v.  Bacon,  20  Mo.  330.     See 

(b)  Griffin   v.    Moore,    43    Md.    246  ;  further,  p.  123,  note. 

Perkins  v.  Scott,  1  Hurl.  &  C.  153  ;  Martin  (c)  See  Chapman  v.  Gillett,  2  Conn.  40. 

V.    Stilwell,     13    Johns.    275.      Secus    of  (/)  ,S'cc2<.s  of  malicious  trespass.  Wilcox 

charge  of  keeping  a  "  bad  house  "  without  v.  Edwards,    5    Blackf.   183;    Yearley  v. 

proper  colloquium  or  eijuivalent.    Peterson  Ashley,  4  Har.  &  J.  314  ;  Burton  v.  Bur- 

V.  Sentman,  37  Md.   140.      But  see  Fitz-  ton,  3  Greene  (Iowa),  316.     But  see  Gage 

gerald  v.  Robinson,  112  Mass.  371.  v.  Shelton,  3  Rich.  242  ;  Chai)lin  v.  Cruik- 

(c)  Andres  v.  Koppenheaver,  3  Serg.  &  shanks,  2  Har.  &  .1.  247. 

R.  255.  (r/)  Perry  v.  JIan,  1  R.  \.  263  ;  McKee 

{d)  Newbit  v.  Statuck,  35  Maine,  305  ;  v.  Ingalls,  4  Scam.  30  ;  Wilson  v.  Tatum, 

Rhinehardt  v.  Potts,  7  I  red.  403  ;  Eccles  8  Jones,  300;  Seaton  v.  Cordray,  Wiighti 

V.  Shannon,  4  Harr.  (Del.)  193  ;  Ramey  v.  101. 


Thornberry,   7    B.   Mon.   475  ;    Fowle  v. 


63 


*  57  DEFAMATORY  WORDS. 

carry  out  such  intention,  as  soon  as  any  overt  act  is  done,  an  attempt  to  commit  a  crime 
has  been  made :  and  every  attempt  to  commit  an  indictable  offence  is  at  common  law 
a  misdemeanor,  and  in  itself  indictable.  To  impute  such  an  attempt  is  therefore  clearly 
actionable.     Harrison  v.  Stratton,  4  Esp.  217.  {a) 

Words  which  merely  disclose  a  suspicion  that  is  in  the  speaker's  mind,  and  which 
the  bystanders  could  not  understand  as  conveying  any  definite  charge  of  felony,  are  not 
actionable.     Tozer  v.  Mashford,  6  Ex.  539  ;  20  L.  J.  Ex.  225.  {h) 

It  is  not  necessary  that  the  words  should  accuse  the  plaintiff  of 
some  fresh,  undiscovered  crime,  so  as  to  put  him  in  jeopardy  or 
cause  his  arrest.  Of  course,  if  such  consequences  have  followed, 
they  may  be  alleged  as  special  damage ;  but  where  such  conse- 
quences are  impossible,  the  words  are  still  actionable.  Thus,  to 
call  a  man  a  returned  convict,  or  otherwise  to  falsely  impute  that 
he  has  been  tried  and  convicted  of  a  criminal  offence,  is  action- 
able without  special  damage,  (c) 

For  it  is  at  least  quite  as  injurious  to  the  plaintiff's  reputation,  to  say 
that  he  has  in  fact  been  convicted,  as  to  say  that  he  will  be,  or 

*  58      ought  to  be,  convicted.     Llany  think  that  such  statements  *  should 

be  actionable,  even  when  true,  if  they  are  ruahciously  or  unneces- 
sarily volunteered.     See^jos^,  p.  179,  c.  VII. 

Illustrations. 

It  is  actionable  without  proof  of  special  damage  to  say  of  the  plaintiff — that  he  had 
been  in  Launcestou  gaol  and  was  burnt  in  the  hand  for  coining.  Gainford  v. 
Take,  Cro.  Jac.  536  ; 

that  he  "  was  in  Winchester  gaol,  and  tried  for  his  life,  and  would  have  been  hanged, 
had  it  not  been  for  Leggatt,  for  breaking  open  the  granary  of  farmer  A.  and 
stealino-  his  bacon."  [Note  that  here  the  speaker  appears  to  admit  that  the 
plaintiff  was  acquitted,  but  still  asserts  that  he  was  in  fact  guilty.]  Carpenter 
1).  Tarrant,  Cas.  temp.  Hardwicke,  339. 

"He  was  a  thief  and  stole  my  gold."     It  was  argued  here  that  "  was  "  denotes  time 

(a)  Berdeaux  v.   Davis,  58   Ala.   611.  (h)  But  if  the  words  be  such  as  to  lead 

But  see  Russell  v.  Wilson,  7  B.  Mon.  261.  the  hearers  to  suspect  the  plaintiff  guilty  of 

So  to  charge  one  with  being  a  ' '  thieving  son  a  crime,  they  are  actionable  per  se.    Drum- 

of  a  bitch."     Reynolds  v.   Ross,  42  Ind.  mond  v.  Leslie,  5  Blackf.  453. 
387.     The  word  "  thieving "  is  considered  (c)  Krebs    v.    Oliver,    12    Gray,    239; 

to  import  offence  committed  and  not  a  mere  Wiley  v.   Campbell,  5  T.   B.   Mon.  396; 

propensity.     lb. ;  Alley  v.  Neely,  5  Blackf.  Smith  v.  Stewart,  5  Barr,  372.     So  to  ac- 

200  ;    Little  v.   Barlow,   26  Ga.  423.     To  cuse   a  young   child    falsely   of    larceny, 

say  "You  as  good  as  stole  the  canoe  "  is  though   he  could  not   be  guilty  thereof, 

held  not  actionable.     Stokes  v.   Arey,  8  Stewart   v.    Howe,    17    111.    71.      Nor^  is 

Jones    66.     So  to  say  "A  man  that  would  physical  ability  to  commit  the  crime  im- 

do  that  would  steal."    Stees  u  Kemble,  27  portant.      Chambers  v.  White,  2  Jones, 

Penn.  St.  112.     Secus  of  a  charge  of  will-  383. 
ingness  to   commit    perjury.       Porter  v. 
Choen,  60  Ind.  338. 

54 


WORDS  UIPUTING   A  CEIIME.  *«68 

past ;  so  that  it  may  have  heen  when  he  was  a  child,  and  therefore  no  larceny  ;  or  in 
the  time  of  Queen  Elizabeth,  since  when  there  had  been  divers  general  pardons :  Sed 
per  cur.:  "it  is  a  gi-eat  scandal  to  be  once  a  thief ;  iov poena  potest  redimi,  cuIjm percn- 
nis  erit."     Boston  v.  Tatam,  Cro.  Jac.  623. 

It  is  actionable  to  call  a  man  "  thief"  or  *'  felon,"  even  though  he  once  committed 
larceny,  if  after  conviction  he  was  pardoned  either  under  the  Great  Seal  or  by  some 
general  statute  of  pardon.  Cuddington  v.  Wilkins,  Hobart,  67,  81  ;  2  Hawk.  P.  C.  c. 
37,  s.  48  ;  Leynian  v.  Latimer  and  others,  3  Ex.  D.  15,  352  ;  46  L.  J.  Ex.  765  ;  47  L. 
J.  Ex.  470  ;  25  W.  K.  751  ;  26  W.  R.  305  ;  37  L.  T.  360,  819.  («) 

It  is  actionable  to  call  a  man  falsely  "a  returned  convict,"  Fowler  v.  Dowdney,  2 
M.  &  Rob.  119. 

In  dealing  with  old  cases  on  this  point,  care  must  be  taken  to  remember 
the  state  of  the  criminal  law  as  it  existed  at  the  date  of  publication. 

Illustrations. 

So  long  as  the  18  Eliz.  c,  3  was  in  force,  it  was  actionable  to  charge  a  woman  with 
being  the  mother,  a  man  with  being  the  putative  father,  of  a  bastard  child,  chargeable 
to  the  parish.  Anne  Davis's  Case,  4  Eep.  17  ;  2  Salk.  694  ;  1  Roll.  Abr.  38  ;  Salter  v. 
Browne,  Cro.  Car.  436  ;  1  Roll.  Abr.  37. 

So  long  as  the  penal  statutes  against  Roman  Catholics  were  in  force  it  was  actionable 
to  say  "He  goes  to  mass,"  or  "He  harbored  his  son,  knowing  him  to  be  a  Romish 
priest."     Walden  v.  Mitchell,  2  Ventr.  265;  Smith  v.  Flynt,  Cro.  Jac.  300. 

*  Secus,  before  such  statutes  were  passed.  Pierepoint's  Case,  Cro.  Eliz.  *  59 
308. 

So  in  many  old  cases  such  words  as  "She  is  a  witch"  were  held  actionable,  the 
statute,  1  Jac.  I.  c.  11,  being  then  in  force.  But  that  statute  is  now  repealed  by  the 
9  Geo.  II.  c.  5,  s.  3,  which  also  expressly  provides  that  no  action  shall  lie  for  charging 
another  with  witchcraft,  sorcery,  or  any  such  offence.  Rogers  v.  Gravat,  Cro.  Eli2. 
571  ;  Dacy  v.  Clinch,  Sid.  53. 

It  was  formerly  the  custom  of  the  City  of  London,  of  the  borough  of  Southwark, 
and  also,  it  is  said,  of  the  city  of  Bristol,  to  cart  whores.  Hence  to  call  a  woman 
"whore"  or  "  strumpet"  in  one  of  those  cities  is  actionable,  if  the  action  be  brought 
in  the  City  Courts,  which  take  notice  of  their  ovm  customs  without  proof.  But  no  ac- 
tion will  lie  in  the  Superior  Courts  of  Westminster  for  such  words,  because  such  cus- 
tom has  never  been  certified  by  the  Recorder,  and  will  now  be  difficult  to  prove. 
Oxford  et  ux.  v.  Cross  (1599),  4  Rep.  18  ;  Hassell  v.  Capcot  (1639),  1  Vin.  Abr.  395;  1 
Roll.  Abr.  36  ;  Cooke  v.  Wingfield,  1  Str.  555  ;  Roberts  v.  Herbert,  Sid.  97  ;  1  Keble, 
418;  Stainton  et  ux.  v.  Jones,  2  Selw.  N.  P.  1205  (13th  edn.);  1  Dougl.  380,  n.  ; 
Theyer  v.  Eastwick,  4  Burr.  2032  ;  Brand  and  wife  v.  Roberts  and  wife,  4  Burr.  2418  ; 
Vicars  v.  Worth,  1  Str.  471. 

So  it  was  in  1602  held  not  actionable  to  say:  —  "Thou  hast  received  stolen  swine, 
and  thou  knowest  the}'  were  stolen  ; "  for  receiving  is  not  a  common  law  offence,  unless 
it  amounts  to  comforting  and  assisting  the  felon  as  an  accessory  after  the  fact.  But 
ever  since  3  Wm.  &  Mary,  c.  9,  s.  4,  and  4  Geo.  I.  c.  11,  such  words  would  be  clearly 
actionable.  Dawes  v.  Bolton  or  Boughton,  Cro.  Eliz.  888  ;  1  Roll.  Abr.  68  ;  Cox  v. 
Humphrey,  Cro.  Eliz.  889. 

A  charge  of  deer  stealing  would  be  actionable  now,  though  in  1705  it  was  held  not 

(a)  Baum  v.  Clause,  5  Hill,  196. 

65 


*59  defa:matoey  words. 

actionable,  because  it  was  subject  only  to  a  penalty  of  £30.  Ogden  v.  Turner,  Salk, 
696  ;  Holt,  40  ;  6  Mod.  104. 

So  now  it  would  of  course  be  actionable  to  accuse  a  man  of  secreting  a  will ;  though 
such  an  accusation  was  held  not  actionable  in  Godfrey  v.  Owen,  Palm.  21  ;  3  Salk.  327. 

AVhere  a  vicar  of  a  parish  falsely  declared  that  the  plaintiff,  a  parishioner,  was  ex- 
communicated, it  was  held  an  action  lay  ;  possibly  because  the  person  excommunicated 
was  at  that  date  liable  to  imprisonment  under  the  writ  de  excommunicato  capiendo  ;  but 
there  seems  to  have  been  some  allegation  of  special  damage  in  the  declaration.  Barna- 
bas V.  Traunter,  1  Vin.  Abr.  396. 

But  an  accusation  of  adultery,  fornication,  &c.,  was  never  ground  for  an  action  in 
the  civil  courts.  The  person  accused  had  a  remedy  in  the  spiiitual  courts  till  the  18 
&  19  Vict.  c.  41  ;  now  he  has  none,  (a) 

*  60  *  The  charge  must  be  clearly  that  of  an  indictable  of- 

fence, although  it  need  not  be  stated  with  all  the  precision 
of  an  indictment.  If  merely  fraud,  dishonesty,  immorality,  or 
vice,  be  imputed,  no  action  lies  without  proof  of  special  damage. 
And  even  where  words  of  specific  import  are  employed  (such  as 
"  thief"  or  "  traitor"),  still,  if  the  defendant  can  satisfy  the  jury 
that  they  were  not  intended  to  impute  any  specific  crime,  but 
merely  as  general  terms  of  abuse,  and  meant  no  more  than 
"  rogue "  or  "  scoundrel,"  and  w^ere  so  understood  by  all  who 
heard  the  conversation,  no  action  lies.  But  if  the  bystanders 
reasonably  understand  the  words  as  definitely  charging  the  plain- 
tiff with  the  commission  of  some  sjpecific  crime,  au  action  lies. 

Illustrations. 

"  You  forged  my  name : "  these  words  are  actionable,  although  it  is  not  stated  to 
what  deed  or  instrument.  Jones  v.  Heme,  2  Wils.  87,  overniling  Anon.,  3  Leon. 
231  ;  1  Roll.  Abr.  65. 

To  say  that  a  man  is  "  forsworn  "  or  "  has  taken  a  false  oath  "  is  not  a  sufficiently 
definite  charge  of  perjury  ;  for  there  is  no  reference  to  any  judicial  proceeding.  But 
to  say  "Thou  art  forsworn  in  a  Court  of  record  "  is  a  sufficient  charge  of  perjury  ;  for 
this  will  be  taken  to  mean  that  he  was  forsworn  while  giving  evidence  in  a  Court  of 
record  before  the  lawfully  appointed  judge  thereof  on  some  point  material  to  the  issue 
before  him.  Stanhope  v.  Blith  (1585),  4  Kep.  15  ;  Holt  v.  Scholefield,  6  T.  R.  691  ; 
Ceely  v.  Hoskins,  Cro.  Car.  509. 

To  say  "I  have  been  robbed  of  three  dozen  winches  ;  you  bought  two,  one  at  3s., 
one  at  2s. ;  you  knew  well  when  you  bought  them  that  they  cost  me  three  times  as 
much  making  as  you  gave  for  them,  and  that  they  could  not  have  been  honestly  come 
by,"  is  a  sufficient  charge  of  receiving  stolen  goods,  knowing  them  to  have  been  stolen. 
[An  indictment  which  merely  alleged  that  the  prisoner  knew  the  goods  were  not  hon- 
estly come  by  would  be  bad.  R.  v.  Wilson,  2  Mood.  C.  C.  52  ;]  Alfred  v.  Fariow,  8 
Q.  B.  854  ;  15  L.  J.  Q.  B.  258 ;  10  Jur.  714. 

"  He  is  a  pick-pocket ;  he  picked  my  pocket  of  my  money,"  was  once  held  an  insuf- 
ficient charge  of  larceny.    "Walls  or  Watts  v.  Rymes,  2  Lev.  51  ;  1  Ventr.  213  ;  3  Salk. 

325. 

(a)  Seej)osf,  p.  85. 

66 


WOKDS  EVIPUTIXG   A  CREVEE.  *  61 

*  But  now  this  would  clearly  be  held  sufficient.     Baker  v.  Pierce,  2  Ld.        *  Q1 
Eaym.  959  ;  Holt,  654  ;  6  Mod.  23  ;  2  Salk.  695 ;  Stebbing  v.  Warner,  11 
Mod.  255. 

"  He  has  defrauded  a  mealman  of  a  roan  hcrse  "  held  not  to  imply  a  criminal  act 
of  fraud  ;  as  it  is  not  stated  that  the  mealman  was  induced  to  part  with  his  property 
by  means  of  any  false  pretence.     Richardson  v.  Allen,  2  Chit.  657. 

So  none  of  the  following  words  are  actionable  without  proof  of  special  damage  :  — 

"  Cheat  :  "  —Savage  v.  Robery,  2  Salk.  694  ;  5  Mod.  398  ;  Davis  v.  Miller  ct  ux.,  2 
Str.  1169.  {n) 

"  Swindler  : "  —  Savile  v.  Jardine,  2  H.  Bh  531 ;  Black  v.  Hunt,  2  L.  E.  Ir.  10  ;  Ward 
V.  Weeks,  7  Bing.  211  ;  4  M.  &  P.  796.  (b) 

*' Rogue,"  "rascal,"  "villain,"  &c. :  — Stanhope  v.  Blith,  4  Rep.  15.  (>:) 

"  Runagate  :  "  —  Cockaine  v.  Hopkins,  2  Lev.  214. 

"  Cozener  :  "  —  Brankard  v.  Segar,  Cro.  Jac.  427  ;  Hutt.  13  ;  1  Vin.  Abr.  427. 

"  Common-filcher  :  "  —  Goodale  v.  Castle,  Cro.  Eliz.  554. 

"  Welcher  :  "  —  Blackman  v.  Bryant,  27  L.  T.  491. 

Kor  are  the  words  "  gambler,"(fO  "black-leg,"  "  black-sheep,"  unless  it  can  be  shown 
that  the  bystanders  understood  the  words  to  imply  "  a  cheating  gambler  punishable  by 
the  criminal  law."  Bamett  v.  Allen,  3  H.  &  N.  376  ;  27  L.  J.  Ex.  412  ;  1  F.  &  F. 
125  ;  4  Jur.  N.  S.  488. 

If  the  crime  imputed  be  one  of  which  the  plaintiff  could  not  by 
any  possibility  be  guilty,  and  all  who  heard  the  imputation  knew 
that  he  could  not  by  any  possibility  be  guilty  thereof,  no  action 
lies,  for  the  plaintiff  is  never  in  jeopardy,  nor  is  his  reputation  in 
any  way  impaired.^  (e) 

Illustratio?is. 

Words  complained  of :  —  "Thou  hast  killed  my  wife."   Everyone  who  heard 
the  words  knew  at  the  time  that  defendant's  wife  was  still  *  alive  :  tliey  could        *  62 
not  therefore  understand  the  word  "  kill "  to  mean  "  murder."     Snag  iJ.  Gee, 
4  Rep.  16,  as  explained  by  Parke,  B.,  in  Heming  v.  Power,  10  M.  &  W.  569.     And 
see  Web  v.  Poor,  Cro.  Eliz.  569  ;  Talbot  v.  Case,  Cro.  Eliz.  823  ;  Dacy  v.  Clinch,  Sid. 
53  ;  Jacob  v.  Mills,  1  Ventr.  117  ;  Cro.  Jac.  343. 

It  is  no  slander  to  say  of  a  churchwarden  that  he  stole  the  bell-ropes  of  his  pai-ish 
church ;  for  they  are  officially  his  property  ;  and  a  man  cannot  steal  his  own  goods. 
Jackson  v.  Adams,  2  Bing.  N.  C.  402  ;  2  Scott,  599  ;  1  Hodges,  339. 

So  it  is  not  actionable  for  A.  to  charge  a  man  who  is  not  A.'s  clerk  or  servant  with 
embezzling  A.'s  money  ;  for  no  indictment  for  embezzlement  would  lie.     [P)Ut  surely 

1  Puller's  N.  P.  5. 

(n)  Weierbach  v.  Trone,  2  Watts  k  S.  (b)  Chase  v.  "Whitlock,   3   Hill,  139  ; 
408.     "You  are  a  cheat  and  a  swindler,  Odiome  v.  Bacon,  6  Cush.  185. 
and  you  defrauded  me,"  orally  charged,  is  {c)  Idol  v.  Jones,  2  Dev.  162. 
not  actionable  per  se.     Lucas  v.  Flinn,  35  {d)  But  secus   of  "  He   keeps  a  gam- 
Iowa,  9  ;  Winter  v.  Sumvalt,  3  Har.  k  J.  bling  place."      Buckley   v.    O'Niel,    113 
68.     But  see  Marshall  v.  AddisoD,  4  Har.  Mass.  193. 
&  M.  537.     So  "You  are  a  liar."     Kimmis         (e)  See  ante,  p.  55,  note. 
V.  Stiles,  44  Vt.  351. 

67 


*  62  DEFAMATORY   WORDS. 

this  can  only  be  the  case  whei'e  the  bystanders  are  aware  of  the  exact  relationship  be- 
tween A.  and  the  plaintiff.]     AVilliams  v.  Stctt,  1  C.  &  SI.  675  ;  3  Tyrw.  688. 

But  where  a  married  woman  said,  "You  stole  my  faggots,"  and  it  was  argued  for 
the  defendant  that  a  married  woman  could  not  own  faggots,  and  therefore  no  one  could 
steal  faggots  of  hers  :  the  Court  construed  the  words  according  to  common  sense  and 
ordinary  usage  to  mean,  "You  stole  my  husband's  faggots."  Stamp  and  wife  v.  "White 
and  wife,  Cro.  Jac.  600 ;  Chaniel's  Case,  Cro.  Eliz.  279. 

"When  the  charge  is  made  hondfide  while  giving  the  plaintiff  into  cus- 
tody or  prosecuting  him  according  to  law,  it  will  be  privileged ;  see  post, 
c.  YIIL,  pp.  220,  221, 


II.    Where  the  words  impute  a  contagious  disease. 

Words  imputing  to  the  plaintiff  that  he  has  an  infectious  or 
contagious  disease  are  actionable  without  proof  of  special 
*  63  damage,  (a)  For  the  effect  of  such  an  *  imputation  is 
naturally  to  exclude  the  plaintiff  from  society.  Such 
disease  may  be  either  leprosy,  venereal  disease,  or,  it  seems,  the 
plague  ;  ^  but  not  the  itch,  the  falling  sickness,  or  the  small-pox  ; 
there  is  not  such  terror  of  infection  in  the  latter  cases.  The 
words  must  distinctly  impute  that  the  plaintiff  has  the  disease  at 
the  time  of  publication :  an  assertion  that  he  has  had  such  a  dis- 
ease would  clearly  be  no  ground  for  his  being  shunned.^  (J) 

Any  words  which  the  hearers  would  naturally  understand  as 
conveying  that  the  plaintiff  then  has  such  a  disease  are  sufficient. 
Many  distinctions  are  drawn  in  old  cases  about  the  pox,  a  word 
which  may  imply  either  the  actionable  syphilis,  or  the  more 
harmless  small-pox.  It  has  been  decided  that  "  he  has  the  pox  " 
(^simpliciter^  shall  be  taken  to  mean  "  he  has  the  small-pox ; " 
but  that  if  any  other  words  be  used  referring  to  the  effects  of  the 
disease,  or  the  way  in  which  it  was  caught,  or  even  the  medicine 
taken  to  cure  it,  these  may  be  referred  to  as  determining  which 
pox  was  meant. 

»  Villers  v.  Monsley,  2  Wils.  403. 

2  Carslake  v.  Mapledoram,  2  T.  R.  473  ;  Taylor  v.  Hall,  2  Str.  1189. 

(a)  Bruce   v.    Soule,   69   ISIaine,  562  ;  57.     The  cases  show  that  it  is  not  material 

Irons  V.  Field,  9  R.  I.  216  ;  Kaucher  v.  whether  the  charge  is  that  of  having  the 

Blinn,   29    Ohio    St.    62  ;    Goldeiman   v.  pox,  sj-jihilis,  or  gonorrhoea. 
Stearns,  7  Gray,  181  ;  Williams  v.  Hold-  (h)  Bruce   v.    Soule,    69   Maine,    562  ; 

ridge,  22  Barb.  398  ;  Nichols  v.  Guy,  2  Irons  v.  Field,  9  R.  I.  216  ;  Pike  v.  Van 

lud.  82  ;  Watson  v.  McCarthy,  2  Kelly,  Wormer,  5  How,  Pr.  171. 

58 


WORDS  COXCERXING  TRADERS,  ETC.         *  63 


Illv^trations, 

To  say  of  a  person,  "  He  hath  the  falling  sickness"  is  not  actionable  unless  it  be 
spoken  of  him  in  the  way  of  his  profession  or  trade.  Taylor  v.  Perr  (1607),  Rolle's 
Abr.  44. 

To  say  to  the  plaintiff,  "Thou  art  a  leprous  knave,"  is  actionable.  Taylor  v.  Per- 
kins (1607),  Cro.  Jac.  144;  RoUe's  Abr.  44. 

To  say  of  the  plaintiff  that  "  He  hath  the  pox  "  is  actionable,  (a)  whenever  the  word 
"wench"  or  "  whore"  occurs  in  the  same  sentence.  Brook  v.  Wise  (1601),  Cro.  Eliz. 
878  ;  Pye  v.  "Wallis  (1658),  Carter,  55  ;  Grimes  v.  Lovel,  12  Mod.  242  ;  Whitfield  v. 
Powel,  12  Mod.  248  ;  Clifton  v.  Wells,  12  Mod.  634 ;  Bloodworth  v.  Grey,  7  il.  &  Gr. 
334  ;  8  Scott,  N.  R.  9. 


*  III.    Words  zvJiich  are  spoken  of  the  plaintiff  in  the  way      *  64 
of  his  profession  or  trade;  or  disparage  him  in 
an  office  of  public  trust. 

Such  words  are  actionable  without  proof  of  any  special  dam- 
age, (h)  It  mnst  injure  the  plaintiff's  reputation  to  disparage 
him  in  his  very  means  of  livelihood.  Where  the  Court  sees  that 
the  words  spoken  affect  the  plaintiff  in  his  office,  profession,  or 
trade,  and  directly  tend  to  prejudice  him  therein,  they  ask  for  no 
further  proof  of  damage.  But  it  must  always  be  averred  on  the 
record  that  the  words  were  spoken  of  the  plaintiff  in  relation  to 
his  office,  profession,  and  trade,  and  that  he  held  such  office,  or 
was  actively  engaged  in  such  profession  or  trade,  at  the  time  the 
words  were  spoken. ^ 

The  office  held  by  the  plaintiff  need  not  he  one  of  profit ;  it  may  he 
merely  confidential  and  honorary,  as  that  of  a  justice  of  the  peace.  Which 
is  a  fresh  proof  that  the  gist  of  an  action  of  slander  is  the  injury  to  the 
plaintiff's  reputation,  and  not  any  presumed  pecuniary  loss.     It  would  he 

1  Bellamy  v.  Burch,  16  M.  &  "\Y.  590. 

{(i)  Irons  V.  Field,  siqira.     Scciis  if  in  to  what  has  been  decided.     It  is  no  doubt 

past  tense.     lb.  true  that  where  the  words,  not  being  spoken 

(b)  Van  Epps  v.  Jones,  50  Ga.  238;  of  the  plaintiff  in  his  vocation  or  necessarily 
Spiering  v.  Andrae,  45  Wis.  330  ;  Gottbe-  affecting  him  therein,  are  in  fact  sued  for  as 
huet  V.  Hubachek,  36  Wis.  515 ;  Gove  v.  injuring  his  business,  special  damage  must 
Blethen,  21  Minn.  80  ;  Sanderson  v.  Cald-  be  alleged  and  proved.  But  that  is  an- 
well,  45  N.  Y.  398  ;  White  v.  CaiToll,  42  N.  other  thing.  The  words,  though  oral,  need 
Y.  161.  The  contrary  rule  in  Curry  v.  Col-  not  impute  crime.  Gove  v.  Blethen,  si/pra. 
lins,  37  Mo.  324,  and  in  Rammell  v.  Otis,  When  it  need  not  be  alleged  that  the  words 
60  Mo.  365,  unless  intended  as  a  repudia-  were  spoken  of  the  plaintiff  in  his  occupa- 
tion of  all  the  authorities  (which  does  not  tion,  see  Sanderson  v.  Caldwell,  supra. 
appear),  is  probably  founded  in  mistake  as 

69 


*  64  defa:matoky  words. 

impossible  to  presume  that  a  justice  of  the  peace  loses  any  money  by  being 
falsely  charged  with  corruption  or  extortion ;  for  there  is  no  emolument 
attached  to  his  office  :  yet  he  may  recover  heavy  damages  for  the  slander. 
So,  too,  a  physician  or  a  barrister  may  sue  for  any  slander  imputing  pro- 
fessional misconduct,  although  in  contemplation  of  law  their  fees  are  mere 
gratuities. 

Illustrations. 

It  is  actionable  without  proof  of  special  damage  :  — 

To  say  that  a  judge  gives  corrupt  sentences.     Cfesar  v.  Curseny,  Cro.  Eliz.  305.  (a) 
To  say  that  a  clergyman  had  been  guilty  of  gross  immorality  and  had  appropriated 
the  sacrament  money.     Highmore  v.  Earl  and  Countess  of  Harrington,  3  C.  B.  N.  S. 
142. 

*  65  *  To  say  of  an  attorney  that  he  deserved  to  be  struck  off  the  roll.     Phillips 

V.  Jansen,  2  Esp.  624  ;  Warton  v.  Gearing,  1  Vict.  L.  R.  C.  L.  122. 

To  say  of  a  watchmaker,  "he  is  a  bungler,  and  knows  not  how  to  make  a  good 
watch."     Redman  v.  Pyne,  1  Mod.  19. 

To  in  any  way  impute  insolvency  or  bankruptcy  to  any  merchant  or  trader.  Ame 
V.  Johnson,  10  Mod.  Ill  ;  Davis  v.  Lewis,  7  T.  R.  17. 

But  it  by  no  means  follows  that  any  words  spoken  to  the  dis- 
paragement of  an  officer,  professional  man,  or  trader,  will  ipso 
facto  be  actionable  per  se.  Words  to  be  actionable  on  this 
ground,  "  must  touch  the  plaintiff  in  his  office,  profession,  or 
trade : "  that  is,  they  must  be  shown  to  have  been  spoken  of  the 
plaintiff  in  lelation  thereto,  and  to  be  such  as  would  prejudice 
him  therein.  They  must  impeach  either  his  skill  or  knowl- 
edge, (6)  or  his  official  or  professional  conduct.  It  is  true  that 
his  special  office  or  situation  need  not  be  expressly  referred  to,  if 
the  charge  made  be  such  as  must  necessarily  affect  it.  And  in 
determining  whether  the  words  used  would  necessarily  affect  the 
plaintiff  in  his  office,  profession,  or  trade,  regard  must  be  had  to 
the  rank  and  position  of  the  plaintiff,  and  to  the  mental  and 
moral  requirements  of  the  office  he  holds.  Words  may  be  action- 
able if  spoken  of  a  clergyman  or  a  barrister,  which  would  not  be 
actionable  of  a  trader  or  a  clerk. 

Thus,  where  integrity  and  ability  are  essential  to  the  due  con- 
duct of  plaintiff's  office,  words  impugning  the  integrity  or  ability 
of  the  plaintiff  are  clearly  actionable  without  any  express  men- 
tion of  that  office ;  for  they  distinctly  imply  that  he  is  unfit  to 

(a)  But  he   should   have  jurisdiction,  per  se.     Spiering  v.  Andrae,   45  Wis.  330 

Oraam  v.  Franklin,  5  Blackf.  42.  (denying  Mayrant  v.  Richardson,   1  Nott 

{b)  To  charge   an   officer   falsely  with  &  McC.  347).     See  White  v.  Carroll,  42 

gross  ignorance  of  his  duties  is  actionable  N.  Y.  161. 

60 


WORDS  COXCEEXING  TRADERS,  ETC.  *  65 

continue   therein.     But  where  the   plaintiff  does  not  hold  any 
situation  of  trust  or  confidence,  words  which  merely  con- 
vey a  general  imputation  of  dishonesty,  or  charge  *him      *  66 
with  some  misconduct  not  connected  with  his  special  pro- 
fession or  trade,  will  not  be  actionable. 

Illustrations. 

To  impute  immorality  (a)  or  adultery  to  a  beneficed  clergjmian  is  actionable  ;  for  it 
is  ground  of  deprivation.  Gallwey  v.  Marshall,  9  Exch.  294 ;  23  L.  J.  Ex.  78  ;  2  C. 
L.  R.  399. 

Kot  so  in  the  case  of  a  physician.     Ayre  v.  Craven,  2  A.  &  E.  2  ;  4  Nev.  &  M.  220. 

Or  a  stayraaker.     BrajTie  v.  Cooper,  5  M.  &  W.  249. 

Or  a  clerk  to  a  gas  company.     Lumby  v.  Allday,  1  C.  &  J.  301  ;  1  Tyrw.  217. 

To  say  of  a  superintendent  of  police  that  "he  has  been  guilty  of  conduct  unfit  for 
publication  "  is  not  actionable,  unless  the  words  were  spoken  of  him  with  reference  to 
his  office.     James  v.  Brook,  9  Q.  B.  7  ;  16  L.  J.  Q.  B.  17  ;  10  Jur.  541. 

It  is  actionable  to  impute  habitual  drunkenness  to  a  beneficed  clergyman.  Dod  v. 
Robinson,  Al.  63. 

Or  to  a  master  mariner  in  command  of  a  vessel.  Irwin  v.  Brandwood,  2  H.  &  C, 
960  ;  33  L.  J.  Ex.  257  ;  9  L.  T.  772  ;  10  Jur.  N.  S.  370  ;  12  W.  R.  438. 

Or  to  a  schoolmaster.     Brandrick  v.  Johnson,  1  Vict.  L.  R.  C.  L.  306. 

It  would  not  be  actionable  where  sobriety  was  not  an  essential  qualification  for  the 
post.  And  to  state  that  a  clergyman  or  a  schoolmaster  was  drunk  on  one  particular 
occasion,  and  that  neither  in  church  nor  in  school,  would  not  be  actionable  ;  as  that 
alone  would  not  necessitate  his  removal  from  his  ofiice.  Tighe  v.  Wicks,  33  Up.  Can. 
Q.  B.  Rep.  470.  Brandrick  v.  Johnson,  1  Vict.  L.  R.  C.  L.  306.  And  see  Hume  v. 
Marshall,  Times,  Nov.  26th,  1877.  (b) 

To  say  of  an  attorney  that  "he  hath  the  falling  sickness"  is  actionable,  without 
special  damages,  because  that  disables  him  in  his  profession.  Taylor  v.  Perr  (1607),  1 
Roll.  Abr.  44. 

But  it  is  not  actionable  to  say  of  an  attorney,  "  He  has  defrauded  his  creditors  and 
has  been  horsewhipped  off  the  course  at  Doncaster ; "  for  it  is  no  part  of  his  profes- 
sional duties  to  attend  horse-races.  Doyley  v.  Roberts,  3  Bing.  N.  C.  835  ;  5  Scott, 
40  ;  3  Hodges,  154. 

To  say  of  a  livery-stable-keeper,  "  You  are  a  regular  prover  under  bankruptcies, 
a  regular  bankrupt-maker,"  is  not  actionable  ;  for  it  is  not  a  charge  against  him  in  the 
way  of  his  trade.  Angle  v.  Alexander,  7  Bing.  119  ;  1  Cr.  &  J.  143  ;  4  M.  &  P.  870  ; 
1  Tyrw.  9. 

(a)  As  to  charge  a  clergyman  with  be-  v.  Norman,  Walk.  (Miss.)  387.     Nor  in 

ing  a  knave.     Harding  v.  Brooks,  5  Pick.  Maine.   Buck  v.  Hersey,  31  Maine,  558. 

244.  •  To  call  a  clergyman  a  drunkard  is  of  coarse 

{b)  Contra,  in  this  countrj'.     Chaddock  actionable.     ^McMillan  v.   Birch,  1  Binn. 

V.  Briggs,  13  Mass.  248  ;  Ha)^ner  v.  Cow-  178.     But  see  Anon}Tnous,  1    Ohio,  83, 

den,  27  Ohio  St.  292.     And  a  false  charge  note.     So  to  charge  the  chief  engineer  of  a 

of  being  drunk  once  is  actionable  in  Mas-  fire  department  with  being  drunk  at  a  fire 

sachusetts  in  the  case  of  a  woman.     Brown  which  he  ought  to  try  to  put  out  is  ac- 

V.  Nickerson,  5  Gray,  1.     Not  so  in  the  tionable  ^;cr  se.     Gottbehuet  w.  Hubachek, 

case  of  a  man   in  Mississippi.      Warren  36  Wis.  515. 

61 


*  66  DEFA:MATOPtY   ^VOEDS. 

•       But  it  is  actionable  without  proof  of  special  damage  to  say  of  a  game- 

*  67        *  keeper  that  "he  trapped  three  foxes  ;"  for  that  would  be  misconduct  in  a 

gamekeeper.  Foulger  v.  Newcomb,  L.  R.  2  Ex.  327  ;  36  L.  J.  Ex.  169  ;  15 
W.  R.  1181  ;  16  L.  T.  595. 

So  to  say  of  an  auctioneer,  "You  are  a  deceitful  rascal,  a  villain,  and  a  liar.  I 
would  not  trust  you  with  an  auctioneer's  licence.  You  robbed  a  man  you  called  your 
friend;  and,  not  satisfied  with  £10,  you  robbed  him  of  £20  a  fortnight  ago,"  was  held 
actionable  by  Cockburn,  C.J.,  in  Ramsdale  v.  Greenacre,  1  F.  &  F.  61.  And  see 
Bryant  v.  Loxton,  11  Moore,  344. 

But  to  say  of  a  land  speculator,  "  He  cheated  me  of  100  acres  of  land,"  was  held  in 
Canada  not  to  touch  him  in  his  trade  and  therefore  not  actionable.  Fellowes  v.  Hun- 
ter, 20  Up.  Can.  Q.  B.  382.     See  Sibley  v.  Tomlins,  4  Tyrw.  90,  post,  p.  80. 

To  call  a  dancing  mistress  "an  hermaphrodite"  is  not  actionable;  for  girls  are 
taught  dancing  by  men  as  often  as  by  women.  Wetherhead  v.  Armitage,  2  Lev.  233  ; 
3  Salk.  328  ;  Freem.  277  ;  2  Show.  18. 

To  say  of  the  keeper  of  a  restaurant,  "You  are  an  infernal  rogue  and  swindler," 
was  held  not  to  be  actionable  without  proof  of  special  damage  ;  as  not  of  themselves 
necessarily  injurious  to  a  restaurant  keeper ;  for,  as  the  Supreme  Court  of  Victoria 
remarked,  "  in  fact  there  might  be  very  successful  restaurant-keepers,  who  were  both 
rogues  and  swindlers."  Brady  v.  Youlden,  Kerferd  and  Box's  Digest  of  Victoria 
Cases,  709  ;  Melbourne  Argus  Reports,  6  Sept.  1867. 

So  to  call  a  carpenter  "a  rogue,"  or  a  cooper  "a  varlet  and  a  knave,"  is  clearly 
not  actionable  2}cr  se  ;  for  the  words  do  not  touch  them  in  their  trades.  Lancaster  v. 
French,  2  Str.  797.     Cotes  v.  Ketle,  Cro.  Jac.  204. 

A  declaration  alleged  that  the  defendant  falsely  and  maliciously  spoke  of  the  plain- 
tiff, a  working  stone-mason,  "  He  was  the  ringleader  of  the  nine  hours'  system,"  and 
"  He  has  ruined  the  town  by  bringing  about  the  nine  hours'  system,"  and  "He  has 
stopped  several  good  jobs  from  being  carried  out,  by  being  the  ringleader  of  the  system 
at  Llanelly,"  whereby  the  plaintiff  was  prevented  from  obtaining  employment  in  his 
trade  at  Llanelly :  —  Held,  on  demurrer,  that,  the  words  not  being  in  themselves  de- 
famatory, nor  connected  by  averment  or  by  implication  with  the  plaintiff's  trade,  and 
the  alleged  damage  not  being  the  natural  or  reasonable  consequence  of  the  speaking  of 
them,  the  action  could  not  be  sustained.  Miller  v.  David,  L.  R.  9  C.  P.  118  ;  43  L. 
J.  C.  P.  84  ;  22  W.  R.  332  ;  30  L.  T.  58. 

Again,  where  a  special  kind  of  knowledge  is  essential  to  the 
proper  conduct  of  a  particular  profession,  denying  that  the 

*  68      plaintiff  possesses  such  special  knowledge  will  *  be  action- 

able, if  the  plaintiff  belongs  to  that  particular  profession, 
but  not  otherwise. 

Illustrations. 

It  has  been  held  actionable  without  special  damage  :  —  • 

To  say  of  a  barrister,  "  He  is  a  dunce,  and  will  get  little  by  the  law  "  [though  here 
it  was  argued  for  the  defendant  that  Duns  Scotus  was  "a  gi-eat  learned  man  ;"  that 
though  to  call  a  man  "  a  dunce  "  might,  in  ordinary  parlance,  imply  that  he  was  dull 
and  heavy  of  wit,  yet  it  did  not  deny  him  a  solid  judgment  ;  and  that  to  say,  "he 
will  get  little  by  the  law"  might  only  mean  that  he  did  not  wish  to  practise].  Peard 
V.  Jones  (1635),  Cro.  Car.  382. 

62 


WORDS  CONCERNING  TRADERS,  ETC.  *  68 

To  saj'  of  an  attorney,  "  He  has  no  more  law  than  Master  Cheyny's  bull,"  8r  "  He 
has  no  more  law  than  a  goose."    Baker  u.  Morfue,  vcl  Morphew,  Sid.  327  ;  2  Keble,  202. 

[According  to  the  report  in  Keble,  an  objection  was  taken  in  this  case  on  behalf  of 
the  defendant,  that  it  was  not  averred  in  the  declaration,  "that  ChejTiy  had  a  bull, 
sed  non  allocatur,  for  the  scandal  is  the  greater,  if  he  had  none."  And  the  Court  adds 
a  solemn  quxre  as  to  saying  "  He  has  no  more  law  than  the  man  in  the  moon,"  feeling 
no  doubt  a  difficulty  as  to  ascertaining  the  precise  extent  of  that  individual's  legal 
acquirements.  But  see  Day  v.  Buller,  3  Wils.  59,  post,  p.  75,  where  the  Court 
strangely  decides  that  it  is  defamatory  to  say  of  an  attorney  that  "he  is  no  more  a 
lawyer  than  the  devil !  "] 

To  say  of  an  attorney, —  "  He  cannot  read  a  declaration."  Powell  v.  Jones,  1 
Lev.  297. 

To  say  of  a  physician  that  "he  is  no  scholar,"  "because  no  man  can  be  a  good 
physician,  unless  he  be  a  scholar."  Cawdrey  v.  Highley,  al.  Tythay,  Cro.  Car.  370; 
Godb.  441. 

To  say  of  the  deputy  of  Clarencieux,  king-at-arms,  "  He  is  a  scrivener  and  no 
herald."     Brooke  v.  Clarke,  Cro.  Eliz.  328  ;  1  Vin.  Abr.  464. 

To  say  of  a  midwife,  "  Many  have  perished  for  her  want  of  skill."  Flowers'  Case, 
Cro.  Car.  211. 

To  charge  an  apothecary  with  having  caused  the  death  of  a  child  by  administering 
to  it  improper  medicines.  Edsall  v.  Russell,  4  M.  &  Gr.  1090  ;  5  Scott,  N.  R.  801  ;  2 
Dowl.  N.  S.  641  ;  12  L.  J.  C.  P.  4  ;  6  Jur.  996.     Tutty  v.  Alewin,  11  Mod.  221. 

Where  an  architect  is  engaged  to  execute  certain  work,  it  is  a  libel  upon  him  in  the 
way  of  his  profession  to  write  to  his  employers  asserting  that  he  has  no  experience  in 
that  particular  kind  of  work,  and  is  therefore  unfit  to  be  entrusted  with  it.  Botterill 
and  another  v.  "NVhytehead,  41  L.  T.  588. 

But  since  no  special  learning  or  ability  is  expected  of  a  justice  of  the  peace 
it  is  not  actionable  to  call  him  "fool,"  "ass,"  "blockhead,"  or  any  *  other  *  69 
words  merely  imputing  want  of  natural  cleverness  or  ignorance  of  law.  But 
words  which  impute  to  him  corruption,  dishonesty,  extortion,  or  sedition  are  action- 
able of  course.  Bill  v.  Neal,  1  Lev.  52  ;  How  v.  Prin,  Holt,  652 ;  2  Salk.  694  ;  2 
Ld.  Raym.  812  ;  7  ilod.  107  ;  1  Bro.  Pari.  C.  64  ;  Aston  v.  Blagrave,  1  Str.  617  ;  8 
Mod.  270  ;  Fort.  206  ;  2  Ld.  Raym.  1369. 

The  plaintiff  must  always  aver  on  the  pleadings  that  he  was 
carrying  on  the  profession  or  trade,  or  holding  the  office,  at  the 
time  the  words  were  spoken,  (a)  Sometimes  this  is  admitted  by 
the  slander  itself,  and  if  so,  evidence  is  of  course  unnecessary  in 
proof  of  this  averment.^  But  in  other  cases,  unless  it  is  admitted 
on  the  pleadings,  evidence  must  be  given  at  the  trial  of  the  spe- 
cial character  in  which  plaintiff  sues.  As  a  rule,  it  is  sufficient 
for  plaintiff  to  prove  that  he  was  acting  in  the  office  or  actively  en- 

1  Yrisarri  v.  Clement,  2  C.  &  P.  223  ;  3  Bing.  432. 

(a)  Forward  v.  Adams,  7  Wend.  204.  libel.     Cramer  v.   Riggs,  17  "Wend.   209; 

Secus  where  the  publication  was  by  writing  Russell  v.  Anthony,  21  Kans.  450  ;  ante, 

or  print,  if  calculated  to  bring  the  plaintiff  p.  27. 
into  ridicule  or  disgrace;  for  it  is  then  a 

63 


*  69  DEFAMATORY  WORDS. 

gaged'in  the  profession  or  trade  without  proving  any  appointment 
thereto,  or  producing  a  diploma  or  other  formal  qualification. 
Omnia  presumuntur  rite  esse  acta}  But  there  is  an  excep- 
tion to  this  rule  where  the  very  slander  complained  of  imputes  to 
a  medical  or  legal  practitioner  that  he  is  a  quack  or  impostor,  not 
legally  qualified  for  practice  :  here  the  plaintiff  must  be  prepared 
to  prove  his  qualification  strictly  by  producing  diplomas  or  cer- 
tificates duly  sealed,  signed,  and  stamped.^ 

Whether  or  no  the  words  were  spoken  of  the  plaintiff  in  the 

way  of  his  business,  is  a  question  for  the  jury  to  determine  at  the 

trial.^     There  should  always  be  an  averment  in  the  statement  of 

claim  that  the  words  *were  so  spoken  ;  (a)  though,  where 

*  70      the  words  are  clearly  of  such  a  nature  as  necessarily  to 

affect  the  plaintiff  in  his  ofQce  or  business,  the  omission 
of  such  an  averment  will  not  be  fatal.^ 

It  will  be  well  to  deal  more  particularly  with  certain  special  offices  and 
professions. 

Persons  holding  any  Offi.ce  of  Confidence  and  Trust. 

"Words  which  impute  a  want  of  integrity  to  any  one  holding  an  office  of 
confidence  or  trust,  whether  an  office  of  profit  or  not,  are  clearly  actionable 
per  se.  (b)  So  if  the  words  employed  have  a  natural  tendency  to  cause  the 
plaintiff  to  he  removed  from  his  office,  as  by  imputing  insufficiency  or  gross 
incompetency,  or  habitual  negligence  of  his  duties.  But  where  the  words 
merely  impute  want  of  ability,  without  ascribing  to  the  plaintiff  any  wicked 
or  dishonest  conduct;  there  no  action  lies  (at  all  events,  where  the  office  is 
honorary  as  in  the  case  of  a  justice  of  the  peace). ^ 

As  the  danger  of  plaintiff''s  losing  his  office  is  the  gist  of  the  action,  it  is 
essential  that  plaintiff  should  hold  the  office  at  the  time  the  words  were 
spoken.' 

1  Rutherford  v.  Evans,  4  C.  &  P.  79;  6  Bing.  451;  Berryman  v.  Wise,  4  T.  R. 
366;  Cannell  v.  Curtis,  2  Bing.  N.  C.  228. 

2  Collins  V.  Carnegie,  3  N.  &  M.  703;  1  Ad.  &  E.  695;  Moises  v.  Thornton,  8  T.  R. 
303;  Wakley  v.  Healey  &  Cooke,  4  Exch.  53;  18  L.  J.  Ex.  426. 

8  Per  Cockburn  C.J.,  in  Ramsdale  v.  Greenacre,  1  F.  &  F.  61. 
*  Stanton  v.  Smith,  2  Ld.  Raym.  1480;   2  Str.  762  ;  Jones  v.  Littler,  7  M.  &  W. 
423;  10  L.  J.  Ex.  171. 

5  Per  Holt,  C.J.,   in  Howe  v.  Prin,  Holt,  653;  2  Salk.  694. 

6  Per  De  Grey,  C.J.,  in  Onslow  t:  Horno,  3  Wils.  188;  2  W.  Bl.  753,  over- 
ruling  the  dictum  of  Pollexfen,  C.J.,  in  Walden  ■;;.  Mitchell,  2  Vent.  266. 

{a)  Van  Tassel  v.  Capron,  1  Denio,  iff  as  such.  Dole  v.  Van  Rensselaer,  1 
250;  Kinney  v.  Nash,  3  Comst.  177.  Johns.  Cas.  330. 

(b)  As  misfeasance  charged  upon  a  sher- 

64 


"WORDS  CONCERNING  PERSONS  IN   OFFICE.  *  70 


Illustration$. 

It  is  actionable  without  proof  of  special  damage:  — 

To  accuse  a  Koyal  Commissioner  of  taking  bribes.  Moor  v.  Foster,  Cro.  Jac.  65; 
Purdy  V.  Stacey,  Buit.  2698. 

To  say  of  a  justice  of  the  [teace,  "Mr.  Stuckley  covereth  and  hideth  felonies,  and  is 
not  worthy  to  be  a  Justice  of  the  Peace; "  "for  it  is  against  his  oath  and  the  office  of  a 
Justice  of  Peace,  and  a  good  cause  to  put  him  out  of  the  commission."  Stuckley  v. 
Bullhead,  4  Rep.  16;  and  see  Sir  John  Harper  v.  Beamond,  Cro.  Jac.  56;  Sir  Miles 
Fleetwood  v.  Curl,  Cro.  Jac.  557;  Hob.  268. 

To  say  of  a  justice  of  the  peace  that  "he  is  a  Jacobite  and  for  bringing  in 
the  Prince  of  Wales  and  Popery;"  for  this  implies  that  he  is  disaffected  *  to       *  71 
the  established  Government  and  should  be  removed  from  office  immediately. 
How  V.  Prin  (1702),  Holt,  652;  7  Mod.  107;  2  Ld.  Raym.  812;  2  Salk.  694.     Affirmed 
in  House  of  Lords  sub  nom.  Prinne  v.  Howe,  1  Brown's  Parly.  Cases,  64. 

To  insinuate  that  a  justice  of  the  peace  takes  bribes  or  "  perverts  justice  to  serve  his 
own  turn."  Ctesar  v.  Curseny,  Cro.  Eliz.  305;  Cam  i;.  Osgood,  1  Lev.  280;  Allestou 
V.  Moor,  Hetl.  167;  Masham  v.  Bridges,  Cro.  Car.  223;  Isham  v.  York,  Cro.  Car.  15; 
Beamond  V.  Hastings,  Cro.  Jac.  240;  Aston  v.  Blagrave,  1  Str.  617;  8  Mod.  270;  2  Ld. 
Eayra.  1369;  Fort.  206.  («) 

To  say  to  a  churchwarden,  "Thou  art  a  cheating  knave  and  hast  cheated  the  parish 
of  £40."     Strode  v.  Holmes  (1651),  Styles,  338;  1  RoU.  Abr.  58;  Woodi'utf  w.  WeoUey, 

1  Vin.  Abr.  463. 

To  call  an  escheator,  attorney,  or  other  officer  of  a  Court  of  Record,  an  "  extortioner." 
Stanley  v.  Boswell,  1  Roll.  Abr.  55. 

To  say  of  a  town-clerk  that  he  hath  not  performed  his  office  according  to  law.  Pow- 
ell V.  Cowe,  RoUe's  Abr.  56 ;  Wright  v.  Moorhouse,  Cro.  Eliz.  358. 

To  say  of  a  Constable: —  "  He  is  not  worthy  the  office  of  constable."  Ta3dor  v.  How, 
Cro.  Eliz.  861;  1  Vin.  Abr.  464. 

In  America  it  has  been  held  actionable  to  charge  a  member  of  a  nominating  conven- 
tion of  a  political  party  with  having  been  influenced  by  a  bribe.  Hand  v.  Winton,  38 
N.  Y.  122;  and  see  Sanderson  v.  Caldwell,  45  N.  Y.  398  ;  DoUoway  v.  Turrell,  26 
"Wend.  (N.  Y.)  383;  Stone  v.  Cooper,  2  Denio  (N.  Y.),  293.  {b) 

So  too  in  Canada,  where  the  plaintiff  was  charged  with  being  a  public  robber  —  in- 
nuendo, that  he,  plaintiff,  had  defrauded  the  public  in  his  dealings  with  them;  it  was 
held  not  necessary  for  plaintiff  to  aver  that  he  is  in  any  office,  trade,  or  employment  in 
which  he  could  have  defrauded  the  public.     Taylor  v.  Carr,  3  Up.  Can.  Q.  B.  Rep.  306. 

But  it  is  not  actionable  without  proof  of  special  damage:  — 

To  impute  insincerity  to  a  Member  of  Parliament.     Onslow  v.  Home,  3  Wils.  177; 

2  W.  Bl.  750.  (c) 

To  say  of  a  justice  of  the  peace.  "  He  is  a  fool,  an  ass,  and  a  beetle-headed  justice; " 
for  these  are  but  general  terms  of  abuse  and  disclose  no  ground  for  removing  the  plain- 

(a)  Lindsey  v.  Smith,  7  Johns.  359.  standing    to   a    candidate    for   Congress, 

(b)  Hand  v.  Winton,  9  Vroom,  122.  Mayrant  v.  Kichardson,  1  Nott  &  U.  347. 

(c)  It  has  been  held  not  actionable  to  But  see  Spiering  i'.  Andrae,  45  Wis.  330; 
say  of  a  member  of  the  Legislature  with  White  v.  Carroll,  42  N.  Y.  161.  On  the 
regard  to  future  conduct,  "  he  is  a  corrupt  subject  of  criticism  of  public  men,  see  anie, 
oldtory."     Hogg  v.  Dorrah,  2  Port.  (Ala.)  p.  40,  note, 

212.      So  to  impute  weakness  of  under- 

5  65 


*  il  DEFA3IAT0RY  WOKDS. 

tiff  from  office.     Bill  v.  Neal,  1  Lev.  52;  Sir  John  Hollis  v.  Briscow  et  uz.,   Cro. 
Jac.  58. 

*  72  *  To  say  of  a  justice  of  the  peace,  "  He  is  a  logger-headed,  a  slouch-headed, 

bursen-bellled  hound."     R.  v.  Farre,  1  Keb.  629. 
To  say  of  a  justice  of  the  peace,  "  He  is  a  blood-sucker  and  sucketh  blood;  "  "for  it 
cannot  be  intended  what  blood  he  sucketh."     Su-  Christopher  Hilliard  v.  Constable, 
Cro.  Eliz.  306. 

Clergrjmen  and  Ministers. 

"Words  are  actionable  if  spoken  of  a  beneficed  clergyman  wbich  would 
not  be  actionable  if  si^oken  of  one  without  cure  of  souls.  ^  But  it  does  not 
follow  that  all  words  which  tend  to  bring  a  beneficed  clergyman  into  dis- 
repute, or  which  merely  impute  that  he  has  done  something  wrong,  are 
actionable  without  special  damage.  The  reason  always  assigned  for  this 
distinction  between  beneficed  clergymen  and  others  is  that  the  charge,  if 
true,  would  be  ground  of  degradation  or  deprivation.^  The  imputation 
must  therefore  be  such  as,  if  true,  would  tend  to  prove  the  plaintiff"  unfit 
to  continue  in  his  office,  and  therefore  tend  more  or  less  directly  to  pro- 
ceedings being  taken  by  the  Bishop.  If  the  plaintiff  holds  any  chaplaincy, 
lectureship,  or  readership,  from  which  he  might  be  removed,  he  will  come 
within  the  same  rules  as  a  beneficed  clergyman.^  But  a  clergyman  with- 
out any  preferment  or  office  stands  on  the  same  footing  as  a  dissenting 
minister,  and  must  prove  that  some  pecuniary  damage  has  followed  from 
the  speaking  of  the  words.* 

Illustrations. 

It  is  actionable  without  proof  of  special  damage:  — 

To  say  of  a  parson  that  "  he  had  two  wives; "  for  though  bigamy  was  not  made  fel- 
ony till  1603,  still  in  1588  it  was  "cause  of  deprivation."  Nicholson  v.  Lyne,  Cro. 
Eliz.  94. 

To  say  that  "he  is  a  drankard,  a  whoremaster,  a  common  swearer,  a  common  liar, 

and  hath  preached  false  doctrine,  and  deserves  to  be  degraded;"  for   "the  matters 

charged  are  good  cause  to  have  him  degi-aded,  whereby  he  should  lose  his  freehold.  " 

Dod  V.    Robinson  (1648),  Aleyn,   63  ;  Dr.  Sibthorpe's  Case,  AV.  Jones,  366  ;  RoUe's 

Abr.  58. 

*  73  *  To  :say  "He  preacheth  lyes  in  the  pulpit  ;"  "car  ceo  est  bon  cause  de 

deprivatimi."     Drake  v.  Drake  (1652),  Roll.  Abr.  58  ;  1  Vin.  Abr.  463. 

[These  cases  clearly  oven'ule  Parret  v.  Carpenter,  Noy,  64  ;  2  Cro.  Eliz.  502,  wherein 

it  was  held  that  an  action  could  lie  only  in  the  spiritual  court  for  saying  of  a  parson  :  — 

"  Parret  is  an  adulterer,  and  hath  had  two  children  by  the  wife  of  J.  S.,  and  I  will 

cause  him  to  be  deprived  for  it."    See  the  remarks  of  Pollock,  C.B.,  23  L.  J.  Ex.  80.] 

1  Gallwey  v.  Marshall,    9  Ex.  294;  23  L.  J.  Ex.  78;  2  C.  L.  R.  399. 

2  Drake  v.  Drake,  1  Roll.  Abr.  58;  Dod  v.  Robinson  (1648),  Aleyn,  63  ;  Pemberton 
V.  Colls,  10  Q.  B.  461;  16  L.  J.  Q.  B.  403;  11  Jur.  1011. 

^  Paj-ne  v.  Beuwmorris,  1  Lev.  248. 
*  See  Hartley  v.  Herring,  8  T.  R.  130. 
66 


WORDS   CONCERXING   LAWYERS,    ETC.  *  73 

To  say  to  a  parson,  "Thou  hast  made  a  seditious  sermon  and  moved  the  people  to 
se.lition  to-day."     Philips,  B.D.  v.  Badby  (1582),  cited  in  Bittridge's  Case,  4  Rep.  19. 

To  say  of  a  parson,  "  He  preacheth  nothing  but  lies  and  malice  in  the  pulpit ; "  for 
the  words  are  clearly  spoken  of  him  in  the  way  of  his  profession.  Crauden  v.  Walden, 
3  Lev.  17.     And  see  Pocock  v.  Nash,  Comb.  253  ;  Musgrave  v.  Bovey,  Str.  946. 

To  say  to  a  clergyman,  "Thou  art  a  drunkard,"  is  not  of  itself  actionable  ;  but  it 
is  submitted  that  to  impute  to  a  clergyman  habitual  drunkenness,  or  drankenness  whilst 
enf^aged  in  the  discharge  of  his  official  duties,  would  be  actionable.  Cucks  v.  Starre, 
Cro.  Car.  285  ;  Tighe  v.  Wicks,  33  Upper  Canada  Q.  B.  Kep.  470. 

To  chart^e  a  clergyman  with  immorality  and  misappropriation  of  the  sacrament 
money  is  clearly  actionable.  Damages  £750.  Highmore  v.  Earl  and  Countess  of  Har- 
rington, 3  C.  B.  N.  S.  142. 

And  of  course  to  charge  a  clergyman  with  having  indecently  assaulted  a  woman  on 
the  highway  is  actionable.     Evans  v.  Gwyn,  5  Q.  B.  844. 

To  say  of  a  beneficed  clergyman  that  he  drugged  the  wine  he  gave  the  speaker  and 
so  fraudulently  induced  him  to  sign  a  bill  of  exchange  for  a  large  amount  is  actionable 
without  proof  of  special  damage  ;  but  it  is  not  actionable  merely  to  say  of  a  beneficed 
clergyman  "he  pigeoned  me."  Pemberton  v.  Colls,  10  Q.  B.  461;  16  L.  J.  Q.  B. 
403  ;  11  Jur.  1011. 

To  charge  a  clergyman  with  incontinence  is  not  actionable,  unless  he  hold  some 
benefice  or  preferment,  or  some  post  of  emolument,  such  as  preacher,  curate,  chaplain, 
or  lecturer.     Gallwey  v.  Marshall,  23  L.  J.  Ex.  78  ;  9  Exch.  294  ;  2  C.  L.  R.  399. 

To  say  of  one  who  had  been  a  linendraper,  but  at  time  of  publication  was  a  dissent- 
ing minister,  that  he  was  guilty  of  fraud  and  cheating  when  a  linendi-aper,  is  no  slander 
of  the  plaintifif  in  his  office  of  dissenting  minister.  Hopwood  v.  Thorn,  8  C.  B.  293 ; 
19  L.  J.  C.  P.  94  ;  14  Jur.  87. 

To  say  of  a  bishop  that  "he  is  a  wicked  man"  is  actionable  without  special 
damage.     Per  Scroggs,  J.,  in  Townshend  v.  Dr.  Hughes,  2  Mod.  160.     *  But     *  74 
this  is  only  because  the  Statute  of  Scandalum  Magnatum,  2  Rich.  II.  st.  1, 
c.  5,  expressly  mentions  "prelates."     See  ^jos;!,  p.  134,  and  note  to  10  Q.  B.  p.  469. 

Barristers-at-Law. 

It  is  quite  clear  that  barristers  and  physicians  may  sue  for 
words  touching  them  in  their  profession,  («)  although  their  fees 
are  honorary.  [The  loss  of  a  gratuity  is  special  damage :  see 
post,  c.  X.] 

IUustratio7is. 

The  plaintiff  was  a  barrister  and  gave  counsel  to  divers  of  the  king's  subjects.  The 
defendant  said  to  J.  S.  (the  plaintiff's  father-in-law),  concerning  the  plaintiff  :  —  "  He 
is  a  dunce  and  will  get  little  by  the  law."  J.  S.  replied,  "  Others  have  a  better  opinion 
of  him."  The  defendant  answered,  "He  was  never  but  accounted  a  dunce  in  the 
Middle  Temple."  Held  that  the  words  were  actionable,  though  no  special  damage  was 
alleged.     Damages,  one  hundred  marks.     Peard  v.  Jones,  Cro.  Car.  382. 

(a)  As  to  charge  an  attorney  with  dis-  Johns.  Cas.  198.  Or  to  call  him  a  cheat, 
closing  confidential  communications  of  his  Rush  v.  Cavenaugh,  2  Barr,  187  ;  Chip- 
client.  GaiT  V.  Selden,  6  Barb.  416 ;  s.  c.  man  v.  Cook,  2  Tyler,  456.  See  further 
4  Comst.  91.     See  Riggs  v.  Denniston,  3  Foot  v.  Brown,  8  Johns.  64. 

67 


*  74  DEFAMATORY  WORDS. 

So  it  is  actionable  to  say  of  a  ban'ister  :  — ■ 

' '  Thou  art  no  lawyer  ;  thou  canst  not  make  a  lease  ;  thou  hast  that  degree  without 
desert ;  they  are  fools  who  come  to  thee  for  law."     Bankes  v.  Allen,  RoUe's  Abr.  54. 

Or,  "He  hath  as  much  law  as  a  Jackanapes."  (N.  B. — The  words  are  not  "710 
more  law  than  a  Jackanapes.")  Palmer  v.  Boyer,  Owen,  17  ;  Cro.  Eliz.  342,  cited  with 
approval  in  Broke's  Case,  Moore,  409.  [And  see  Cawdrey  v.  Tetley,  Godb.  441,  where 
it  is  said  that  had  the  words  been,  "  He  has  no  more  wit  than  a  Jackanapes,"  no  action 
would  have  lain  ;  wit  not  being  essential  to  success  at  the  bar,  according  to  F.  Pollock, 
2  Ad.  k  E.  4]. 

Or,  "  He  has  deceived  his  client,  and  revealed  the  secrets  of  his  cause."  Snag  v. 
Gray,  1  Roll.  Abr.  57  ;  Co.  Eutr.  22. 

Or,  "  He  will  give  vexatious  and  ill  counsel,  and  stir  up  a  suit  and  milk  her  purse, 
and  fill  his  own  large  pockets."     King  v.  Lake,  2  Ventr.  28  ;  Hardres,  470. 

Solicitors  and  Attorneys. 

It  is  actionable  without  special  damage  :  — 

To  say  of  an  attorney,  "He  is  a  very  base  rogue  and  a  cheating  knave,  and  doth 
maintain  himself,  his  wife  and  children  by  his  cheating."  Anon.  (1638),  Cro.  Car.  516. 
See  Jenkins  v.  Smith,  Cro.  Jac.  586.  (a) 

To  say  of  an  attorney  that  "  he  hath  the  falling  sickness  ; "  for  that  disables  him  iu 
his  profession.     Taylor  v.  Perr  (1607),  1  RoUe's  Abr.  44. 

To  say  of  an  attorney,  "  What,  does  he  pretend  to  be  a  lawyer  ?    He  is  no 

*  75     *  more  a  lawyer  than  the  devil  ;  "  or  any  other  words  imputing  gross  ignorance 

of  law.  Day  v.  Buller,  3  Wils.  59  ;  Baker  v.  Morfue,  Sid.  327  ;  2  Keb.  202  ; 
ante,  p.  68  ;  Powell  v.  Jones,  1  Lev.  297,  ante,  p.  68. 

To  say  of  an  attorney,  "  He  is  only  an  attorney's  clerk,  and  a  rogue  ;  he  is  no  attor- 
ney," or  any  words  imputing  that  he  is  not  a  fully  qualified  practitioner.  Hardwick  v. 
Chandler,  Stra.  1138. 

To  say  of  an  attorney,  "He  is  an  ambidexter,"  i.e.,  one  who  being  retained  by  one 
party  in  a  cause,  and  having  learnt  all  his  secrets,  goes  over  to  the  other  side,  and  acts 
for  the  advei*sary.  Such  conduct  was  subject  for  a  qui  tarn  action  under  an  old  penal 
statute  :  see  Rastell's  Entries,  p.  2,  Action  sur  le  case  vers  Attorney,  3  ;  Annison  v. 
Blofield,  Carter,  214;  1  Roll.  Abr.  55. 

To  impute  that  he  will  betray  his  clients'  secrets  and  overthrow  their  cause.  Martyn 
V.  Burlings,  Cro.  Eliz.  589. 

To  charge  an  attorney  with  barratry,  champerty,  or  maintenance.  Boxe  v.  Bamaby, 
1  Roll.  Abr.  55  ;  Hob.  117 ;  Proud  v.  Hawes,  Cro.  Eliz,  171  ;  Hob.  140  ;  Taylor  v. 
Starkey,  Cro.  Car.  192. 

To  say  of  an  attorney  :  —  "  He  stirreth  up  suits,  and  once  promised  me,  that  if  he 
did  not  recover  in  a  cause  for  me,  he  would  take  no  charges  of  me  ; "  "  because  stirring 
up  suits  is  barratry,  and  undertaking  a  suit,  no  purchase  no  pay,  is  maintenance." 
Smith  V.  Andrews,  1  Roll.  Abr.  54  ;  Hob.  117. 

To  assert  that  an  attorney  has  been  guilty  of  professional  misconduct  and  ought  to 
be  struck  off  the  rolls.  Byrchley's  Case,  4  Rep.  16  ;  Phillips  v.  Jansen,  2  Esp.  624  ; 
Warton  v.  Gearing,  1  Vict.  L.  R.  C.  L.  122. 

But  it  is  not  actionable  to  say  of  an  attorney,  "  He  has  defrauded  his  creditors  and 
has  been  hor.sewhipped  off  the  course  at  Doncaster  ; "  for  it  is  no  part  of  his  profes- 
sional duties  to  attend  horse-races,  and  his  creditors  are  not  his  clients.  Doyley  v. 
Roberts,  3  Bing.  X.  C.  835 ;  5  Scott,  40  ;  3  Hodges,  154. 

(a)  Rush  V.  Cavenaugh,  2  Barr,  187. 

68 


WORDS   CONCERNING   PHYSICIANS,   ETC.  *  <0 

Kor  to  abuse  him  in  general  terms,  such  as  "cheat,"  " rogue,"  or  " knave  ; "  though 
to  say,  "You  cheat  your  clients,"  would  he  actionable.  Alleston  v.  Moor,  Het.  167. 
And  see  Bishop  v.  Latimer,  4  L.  T.  775.  (a) 

PJiysicians  and  Surgeons. 

Any  words  imputing  to  a  practising  medical  man  misconduct 
or  incapacity  in  the  discharge  of  his  professional  duties  is  action- 
able per  se.  (6) 

*  Illustrations.  *  76 

Thus  it  is  actionable  without  proof  of  special  damage  :  — 

To  accuse  any  physician,  surgeon,  accoucheur,  midwife,  or  apothecary,  with  having 
caused  the  death  of  any  patient  through  his  ignorance  or  culpable  negligence.  Poe  v. 
Mondford,  Cro.  Eliz.  620 ;  Tuttey  v.  Alewin,  11  Mod.  221  ;  Watson  v.  Vanderlash, 
Hetl.  71 ;  Southee  v.  Denny,  1  Exch.  196  ;  17  L.  J.  Ex.  151  ;  Edsall  v.  Kussell, 
4  M.  &  Gr.  1090  ;  12  L.  J.  C.  P.  4  ;  5  Scott,  N.  R.  801  ;  2  Dowl.  N.  S.  641  ;  6  Jur. 

996.  (c) 

To  call  a  practising  medical  man  "  a  quack-salver,"  or  "an  empiric,"  or  a  "  mounte- 
bank." Allen  V.  Eaton,  1  Roll.  Abr.  54  ;  Goddart  v.  Haselfoot,  1  Viner's  Abr.  (S.  a.), 
pi.  12  ;  1  Roll.  Abr.  54. 

To  say  that  "  his  character  is  so  bad,  that  none  of  the  medical  men  here  will  meet 
him."  Southee  v.  Denny,  1  Exch.  196.  But  see  Clay  v.  Roberts,  9  Jur.  N.  S.  580 ; 
11  W.  R.  649  ;  8  L.  T.  397  ;  Ramadge  v.  Ryan,  9  Biug.  333 ;  2  M.  &  So.  421. 

But  it  is  not  actionable  :  — 

To  say  of  a  surgeon,  "He  did  poison  the  wound  of  his  patient;"  without  some 
averment  that  this  was  improper  treatment  of  the  wound  ;  for  else  "  it  might  be  for 
the  cure  of  it."     Suegoe's  Case,  Hetl.  175.  id) 

Nor  to  call  a  person  who  practises  medicine,  or  surgeon,  without  full  legal  qualifica- 
tion, "a  quack,"  or  "an  impostor  ;"  for  tlie  law  only  protects  laicful  employments. 
Collins  V.  Carnegie,  1  A.  &  E.  695  ;  3  N.  &  :M.  703. 

Nor  to  charge  a  physician  with  adultery  unconnected  with  his  professional  conduct. 
It  would  be  otherwise  if  he  had  been  accused  of  seducing,  or  committing  adultery 
with,  one  of  his  patients.     Ayre  v.  Craven,  2  A.  &  E.  2  ;  4  N.  &  M.  220. 

(a)  Rush  V.  Cavenaugh,  2  Barr,  187.  or  surgeon  with  mere  want  of  skill  or  with 

(6)  Sumner   v.    Utley,    7    Conn.    258  ;  ignorance  or  neglect  is  not  actionable  per 

Camp  V.  Martin,  23  Conn.  86  ;  Rodgers  v.  se   though  untrue,  unless   the   charge  be 

Kline,  56  Miss.  808.     See  Secor  v.  Harris,  of  gross  want  of  skill  or  the  like,  so  as  to 

18  Barb.  425  ;  Carroll  v.  White,  33  Barb,  imply  general  unfitness.    See  also  Camp  v. 

615  ;  s.  c.  42  N.  Y.  161.  ]\Iartin,  23  Conn.  86  ;  Jones  v.  Diver,  22 

(c)  Johnson     v.    Robertson,    8     Port.  Ind.  184;  Foot  v.  Brown,  8  Jolins.  64  (of 

(Ala. )  486.     To  chaige  a  physician  or  sur-  an  attorney). 

geon  with  "  malpractice  "  is  not  actionable  (d)  Jones  v.  Diver,  22  Ind.  184.    But  to 

if  it  appear  that  the  word  was  not  used  or  -say  "  Dr.  A.  killed  my  children.     He  gave 

understood  in  a  technical  sense.     Rodgers  them  teas]ioonful  doses  of  calomel.     They 

V.  Kline,  56  Miss.  808.     But  the  technical  died  right  off,"    is  actionable.      Secor  v. 

is  probably  the  primary  and  prima  facie  Harris,  18  Barb.  425.    See  Carroll  i;.  White, 

sense  of  the  term.     It  is  also  said  in  the  33  Barb.  615  ;  s.  c.  42  N.  Y.  161  ;  March 

case  just  cited  that  to  charge  a  physician  ■;;.  Davison,  9  Paige,  580. 

69 


*  76  DEFAMATORY  WOEDS. 

Dawes  intended  to  employ  tlie  plaintiff,  a  surgeon  and  acconcheur,  at  his  wife's 
approaching  confinement ;  bat  the  defendant  told  Dawes  that  the  plaintiff's  female 
servant  had  had  a  child  by  the  plaintiff :  Dawes  consequently  decided  not  to  employ 
the  plaintiff :  Dawes  told  his  mother  and  his  wife's  sister  what  defendant  had  said  ; 
and  consequently  the  plaintiff's  practice  fell  off  considerably  among  Dawes'  friends  and 
acquaintance  and  others.  The  fee  for  one  confinement  was  a  guinea.  Held  that  the 
action  lay,  special  damage  being  proved ;  that  the  plaintiff  was  entitled  to  more  than 
the  one  guinea  damages  ;  that  the  jury  should  give  him  such  sum  as  they  considered 
Dawes'  custom  was  worth  to  him  ;  but  that  the  jury  clearly  could  not  in  this  action 
give  him  anything  for  the  general  decline  of  his  business.  DLxon  v.  Smith,  5  H.  &  N. 
450  ;  29  L.  J.  Ex.  125. 

*  77  *  So,  to  impute  incompetency  to  any  one  practising  an  art,  as  a 

dentist,  a  schoolmaster,  a  land  surveyor,  or  an  architect,  is  action- 
able per  se. 

Illustrations. 

Thus  it  is  actionable  without  jn'oof  of  special  damage  :  — 

To  saj  of  a  schoolmaster,  ' '  Put  not  your  son  to  him,  for  he  wiU  come  away  as  very 
a  dunce  as  he  went."     Watson  v.  Vanderlash,  HetL  71. 

Or  to  accuse  a  schoolmaster  of  Juihitual  drunkenness.  Brandrick  v.  Johnson,  1  Yict. 
L.  E.  C.  L.  306. 

Or  to  say  of  an  architect  engaged  to  restore  a  church,  that  he  has  no  experience  in 
church  work.     Botteiill  and  another  v.  Whytehead,  4]  L.  T.  5S8. 

Or  to  say  of  a  land  surveyor,  in  the  way  of  his  trade,  "Thou  art  a  cozener  and  a 
cheating  knave,  and  that  I  can  prove."     London  v.  Eastgate,  2  RoUe's  Rep.  72. 

But  it  has  actually  been  held  not  actionable  to  impute  prostitution  to  a  school- 
mistress. "Wetherhead  v.  Armitage,  2  Lev.  233  ;  2  Show.  18  ;  Freem.  277  ;  3  Salk. 
328  ;  i)er  Twisden,  J.,  in  Wharton  v.  Brook,  Ventr.  21  ;  but  see  the  remarks  of  Lord 
Deuman,  C.J.,  in  Ayre  v.  Craven,  2  A.  &  E.  2  ;  4  N.  &  M.  220. 

Traders. 

So  if  the  plaintiff  carry  on  any  trade  recognised  by  the  law,  or  be  en- 
gaged in  any  lawful  employment,  however  humble,  an  action  lies  for  any 
words  which  affect  him  in  the  way  of  such  trade  or  employment,  and  prej- 
udice him  therein,  {a)  But  the  words  must  relate  to  his  employment,  and 
"  touch  "  him  therein. 

Illustrations. 

Tlius,  it  is  actionable  without  proof  of  special  damage  :  — 

To  say  of  a  clerk  or  servant  that  he  had  "  cozened  his  master."  Seaman  v.  Bigg, 
Cro.  Car.  480  ;  Reignald's  Case  (1640),  Cro.  Car.  563.  (6) 

To  say  of  a  servant  girl  that  she  had  had  a  miscarriage,  and  had  lost  her  place  in 
consequence.     Connors  v.  Justice,  13  Ir.  C.  L.  R.  451. 

(a)  As  in  the  case  of  a  mechanic.  Fitz-  no  confidence  could  be  placed  in  him. 
gerald  v.  Redfield,  51  Barb.  484.  Fowles  v.  Bowen,  30  N.  Y.  20. 

{h)  Or  that  he  was  such  a  notorious  liar 

70 


WORDS   COKCEENIXG   TRADERS.  *  77 

To  say  of  a  gamekeeper  that  lie  trapped  three  foxes  ;  for  that  would  be  clearly  a  breach 
of  his  duties  as  gamekeeper.  Foulger  v.  Xewcomb,  L.  E.  2  Ex.  327  ;  36  L.  J.  Ex. 
169  ;  15  W.  R.  1181  ;  16  L.  T.  595. 

*  To  say  to  an  innkeeper  :  —  "  Thy  house  is  infected  with  the  pox,  and  thy       *  78 
wife  was  laid  of  the  pox ; "  for  even  if  small-pox  only  was  meant,  still  "it 
was  a  discredit  to  the  plaintiff,  and  guests  would  not  resort "  to  his  house.     Damages 
£50.     Levet's  Case,  Cro.  Eliz.  289.     And  see  the  remarks  of  Kelly,  C.B.,  in   Eidin<j-  v. 
Smith,  1  Ex.  D.  94  ;  45  L.  J.  Ex.  281  ;  24  W.  R.  487  ;  34  L.  T.  500. 

But  it  is  not  actionable  per  se  :  — 

To  sa}' of  a  livery-stable  keeper  :  —  "You  are  a  regular  prover  under  bankruptcies, 
a  regular  bankrupt  maker  ;  "  for  it  is  not  a  charge  against  him  in  the  way  of  his  trade. 
Angle  V.  Alexander,  7  Bing.  119  ;  1  Cr.  &  J.  143  ;  4  M.  &  P.  870  ;  1  Tynv.  9. 

Nor  to  say  to  a  clerk  to  a  gas-companj' :  —  "You  are  a  fellow,  a  disgrace  to  the 
town,  unfit  to  hold  your  situation  for  your  conduct  with  whores."  Lumby  v.  Alldav, 
1  C.  &  J.  301  ;  1  Tyrw.  217.  And  see  James  v.  Brook,  9  Q.  B.  7  ;  16  L.  J.  Q.  B.  17"  ; 
10  Jur.  541. 

Kor  to  impute  to  a  stayraaker  that  his  trade  is  maintained  b}-  the  prostitution  of  his 
shopwoman.  Brayne  v.  Cooper,  5  M.  &  W.  249.  But  see  Riding  v.  Smith,  1  Ex.  D. 
91 ;  45  L.  J.  Ex.  281  ;  24  W.  R.  487  ;  34  L.  T.  500. 

The  law  guards  most  carefully  the  credit  of  all  merchants  and  traders  ; 
any  imputation  on  their  solvency,  any  suggestion  that  they  are  in  pecuniary 
difficulties,  or  are  attempting  to  evade  the  operation  of  any  Bankruptcy  Act, 
is  therefore  actionable  ^:»er  se.  (a) 

Illustrations. 

Thus  it  is  actionable  without  proof  of  special  damage :  — 

To  impeach  the  credit  of  any  merchant  or  tradesman  by  imputing  to  him  bankruptcy 
or  insolvency,  either  past,  present  or  future.  Johnson  v.  Lemmon,  2  Eolle's  Rep.  144  ; 
Thompson  v.  Twenge,  2  Eolle's  Eep.  433  ;  Vivian  v.  Willet,  Sir  Thomas  Eaymond, 
207  ;  3  Salk.  326  ;  Stanton  v.  Smith,  Ld.  Eaymond,  1480  ;  2  Str.  762  ;  "S^Huttington 
V.  Gladwin,  5  B.  &  C.  180  ;  2  C.  &  P.  146  ;  Eobinson  v.  Marchaut,  7  Q.  B.  918  ;  15 
L.  J.  Q.  B.  134  ;  10  Jur.  156  ;  Harrison  v.  Bevington,  8  C.  &  P.  708  ;  Gostling  y. 
Brooks,  2  r.  &  F.  76  ;  Brown  v.  Smith,  13  C.  B.  596  ;  22  L.  J.  C.  P.  151  ;  17  Jur. 
807  ;  1  C.  L.  E.  4. 

*To  say  to  a  tailor,  "  I  heard  you  were  run  away,"  sc.  from  your  creditors.        *  79 
Davis  ».  Lewis,  7  T.  E.  17.     And  see  Dobson  v.  Thornistone,  3  Mod.  112  ; 
Chapman  v.  Lamphire,  3  Mod.  155  ;    Arne  v.   Johnson,    10  Mod.    Ill  ;    Harrison  v. 
Thornborough,  10  Mod.  196  ;  Gilb.  Cas.  114. 

To  say  of  a  brewer  that  he  had  been  arrested  for  debt.  And  this  although  no  ex- 
press reference  to  his  trade  was  made  at  time  of  publication,  for  such  words  must  neces- 
sarily affect  his  credit  therein.     Jones  v.  Littler,  7  M.  &  W.  423  ;  10  L.  J.  Ex.  171. 

To  assert  that  the  plaintiff  had  once  been  bankrupt  in  another  place,  when  carrjang 

(a)  Lewis  v  Hawley,  2  Day,  495  ;  Mott  say  of  a  farmer,  "  The  sheriff  will  sell  him 

V.  Comstock,  7  Cowen,  654  ;  Sewall  v.  Cat-  out  one  of  these  days,  and  claims  against 

lin,  3  AVend,  291  ;  Davis  v.  Euff,  Chaves,  him  not  sued  will  he  lost,"  is  actionable. 

17  ;    Carpenter  v.  Dennis,  3  Sandf.  305.  Phillips  v.   Hoefer,  1  Barr,  62.      But  see 

It  has  been  held  in  Pennsylvania  that  to  Windsor  v.  Oliver,  41  Ga.  538. 

71 


*  79  DEFAJVIATORY  WORDS. 

on  another  trade  ;  for  that  may  still  affect  him  here  in  his  present  trade.     Leycroft  v. 
Dunker,  Cro.  Car.  317;  Hall  v.  Smith,  1  M.  &  S.  287  ;  Figgins  v.  Cogswell,  3  M.&  S. 

369. 

To  say  of  any  trader  :  —  "  He  is  not  able  to  pay  his  debts."  Drake  v.  Hill,  Sir  T. 
Kayui.  184 ;  2  Keble,  549  ;  1  Lev.  276  ;  Sid.  424  ;  Hooker  v.  Tucker,  Holt,  39  ;  Mor- 
ris V.  Langdale,  2  Bos.  &  Pull.  284  ;  Orpwood  v.  Barkes  (vel  Parkes),  4  Bing.  261  ;  12 
Moore,  492. 

To  impute  insolvency  to  an  innkeeper,  even  though  at  that  date  innkeepers  were 
not  subject  to  the  bankruptcy  laws.  Whittington  v.  Gladwin,  5  B.  &  C.  180  ;  2  C.  & 
P.  146  ;  Southam  v.  Allen,  Sir  T.  Raym.  231. 

So  if  the  defendant's  words  impute  to  the  plaintiif  dishonesty  and  fraud 
in  the  conduct  of  his  trade,  such  as  knowingly  seUing  inferior  articles  as 
superior,  or  wilfully  adulterating  his  wares  ;  they  will  he  actionable  per 
se.  Though  all  bond  fide  complaints  by  a  customer  of  the  goods  sup- 
plied to  him  are  of  course  privileged.^  If  the  words  merely  impugn  the 
goods  the  plaintiff  sells,  they  are  not  actionable  unless  they  fall  within  the 
rules  relating  to  Slander  of  Title,  post,  c.  V.  ;  for  they  are  but  an  attack 
on  a  thing,  not  on  a  person.'^  But  often  an  attack  on  a  commodity  may  be 
also  an  indirect  attack  upon  its  vendor;  e.g.,  if  fraud  or  dishonesty  be  im- 
puted to  him  in  offering  it  for  sale.' 

*  80  *  Illustrations. 

Thus  it  is  actionable  without  proof  of  special  damage  :  — 

To  say  of  a  trader:  —  "He  is  a  cheating  knave,  and  keeps  a  false  debt-book." 
Crawfoot  v.  Dale,  1  Vent.  263  ;  3  Salk.  327.  Overruling  Todd  v.  Hastings,  2  Saund. 
307.  (a) 

Or  that  he  uses  false  weights  or  measures.  Griffiths  v.  Lewis,  7  Q-  B.  61  ;  14  L. 
J.  Q.  B.  197  ;  9  Jur.  370 ;  8  Q.  B.  841  ;  15  L.  J.  Q.  B.  249  ;  10  Jur.  711  ;  Gray  v. 
Ham,  1  Brownlow  &  Golds.  4  ;   Stober  v.  Green,  ib.  5  ;  Prior  v.  Wilson,  1  C.  B.  N.  S.  95. 

To  say  to  a  cornfactor,  "You  are  a  rogue  and  a  swindling  rascal,  you  delivered  me 
100  bushels  of  oats,  worse  by  6s.  a  bushel  than  I  bargained  for."  Thomas  v.  Jackson, 
3  Bing.  104  ;  10  Moore,  425. 

To  say  of  a  tradesman  that  he  adulterates  the  goods  he  sells.  Jesson  v.  Hayes 
(1636),  Roll.  Abr.  63. 

1  Crisp  V.  Gill,  29  L.  T.  (Old  S.),  82;  Oddy  v.  Lord  Geo.  Paulet,  4  F.  &  F. 
1009. 

2  Fenn  v.  Dixe  (1638)  1  Roll.  Abr.  58  ;  Evans  v.  Harlow,  5  Q.  B.  624  ;  13  L.  J. 
Q.  B.  120  ;  Harman  v.  Delany,  2  Str.  898  ;  Fitz.  121  ;  1  Barnard.  289,  438. 

8  See  Jenner  v.  A'Beckett,  L.  R.  7  Q.  B.  11  ;  41  L.  J.  Q.  B.  14  ;  20  W.  R.  181  ; 
25  L.  T.  464  ;  Burnet  v.  Wells  (1700),  12  Mod.  420  ;  Clark  v.  Freeman,  11  Beav.  112  ; 
17  L.  J.  Ch.  142  ;  12  Jur.  149. 

(a)  Or  keeping  false  books.     Burtch  v.  natural  incident  of  the  plaintiff's  business 

Nickerson,    17   Johns.    217;  Rathbun   v.  to  make  the  words  actionable i^erse.    Rath- 

Emigh,  6  Wend.  407.     It  should  however  bun  v.  Emigh,  supra. 
appear  that   the   keeping  of  books  is  a 

72 


WOEDS   CONCERNING  TRADERS.  *  80 

To  say  of  a  contractor  :  —  "He  used  the  old  materials,"  when  his  contract  was  for 
new,  is  actionable,  with  proper  innuendoes.  Baboneau  v.  Farrell,  15  C.  B.  360  ;  24 
L.  J.  C.  P.  9  ;  1  Jiir.  N.  S.  114  ;  3  C.  L.  R.  142  ;  Sir  R.  Greenfield's  Case,  Mar.  82  ; 
1  Viner's  Abr.  465.     See  Smith  v.  Mathews,  1  Moo.  &  Rob.  151. 

To  say  of  an  auctioneer  or  appraiser  who  had  valued  goods  for  the  defendant,  "He 
is  a  damned  rascal,  he  has  cheated  me  out  of  £100  on  the  valuation."  Bryant  v.  Lox- 
ton,  11  Moore,  344  ;  Ramsdale  v.  Greenacre,  1  F.  &  F.  61,  ante,  p.  67. 

To  say  of  a  butcher  that  he  changed  the  lamb  bought  of  him  for  a  coarse  piece  of 
mutton.     Crisp  v.  Gill,  29  L.  T.  Old  Series,  82  ;  Rice  v.  Pigeon,  Comb.  161. 

But  to  call  a  tradesman  "a  rogue,"  or  "  a  cheat,"  or  "  a  cozener,"  is  not  actionable, 
unless  it  can  be  shown  that  the  words  refer  to  his  trade,  (a)  To  impute  distinctly 
that  he  cheats  or  cozens  in  his  trade  is  actionable.  Johns  v.  Gittings,  Cro.  Eliz.  239  ; 
Cotes  V.  Ketle,  Cro.  Jac.  204  ;  Terry  v.  Hooper,  1  Lev.  115  ;  Savage  v.  Robery,  5  Mod. 
398  ;  2  Salk.  694  ;  Surman  v.  Shelleto,  3  Burr.  1688  ;  Bromefield  v.  Snoke,  12  Mod. 
307  ;  Savile  i'.  Jardine,  2  H.  Bl.  531  ;  Lancaster  v.  French,  2  Stra.  797  ;  Davis  v. 
Miller  ei!  Ma;.,  2  Stra.  1169;  Fellowes  v.  Hunter,  20  Up.  Can.  Q.  B.  382;  Brady  u. 
Youlden,  Melbourne  Argus  R.,  an. 

*  [N.  B.  —  Lancaster  v.  French  appears  to  go  a  little  further  than  the  other  *  81 
cases  cited  :  but,  if  so,  it  must  be  taken  to  be  so  far  overruled  by  them.] 

So  to  say  to  a  pork  butcher,  "  Who  stole  Fraser's  pigs  ?  You  did,  you  bloody 
thief,  and  I  can  prove  it  —  you  poisoned  them  with  mustard  and  brimstone,"  was  held 
not  actionable  (the  jury  having  found  that  the  words  were  not  intended  to  impute 
felony) ;  for  there  was  nothing  to  show  that  they  were  spoken  of  the  plaintiff  in  rela- 
tion to  his  trade.     Sibley  v.  Tomlins,  4  Tyrwhitt,  90. 

So  to  say  of  a  grocer,  "  His  shop  is  in  the  market,"  is  not  actionable,  in  the  primary 
sense  of  the  words  at  all  events.     Ruel  v.  Tatnell,  29  W.  R.  172  ;  43  L.  T.  50r. 

It  must  be  averred  and  proved  that  the  plaintiff  carried  on  his  trade  at 
the  time  the  words  were  spoken  ;  else  the  words  cannot  be  spoken  of  him 
in  the  way  of  such  trade.  ^  Moreover  the  trade  or  employment  must  be 
one  recognised  by  the  law  as  a  legitimate  means  of  earning  one's  living. 

Illustrations. 

A  stock-jobber  could  not  sue  for  words  spoken  of  him  in  the  way  of  his  trade,  so 
long  as  that  trade  was  illegal  within  the  7  Geo.  IL  c.  8,  s.  1  (Sir  John  Barnard's  Act ; 
now  repealed  by  23  &  24  Vict.  c.  28).  Morris  v.  Langdale,  2  Bos.  &  Pull.  284  ;  Collins 
V.  Carnegie,  1  A.  &  E.  695  ;  3  N.  &  M.  703. 

If  the  plaintiff  avers  that  he  carries  on  two  trades,  it  will  be  sufficient  to  prove  that 
he  carries  on  one,  if  the  words  can  affect  him  in  that  one.  Figgins  v.  Cogswell,  3  M.  & 
S.  369  ;  Hall  v.  Smith,  1  M.  &  S.  287. 

Where  insolvency  is  imputed  to  one  member  of  a  firm,  either  he  or  the  firm  may 
sue,  for  it  is  a  reflection  on  the  credit  of  both.  Harrison  v.  Bevington,  8  C.  &  P.  708  ; 
Cook  and  another  v.  Batchellor,  3  Bos.  &  Pull.  150  ;  Foster  and  others  v.  Lawson,  3 
Bing.  452  ;  11  Moore,  360.  (b) 

1  Bellamy  v.  Burch,  16  M.  &  W.  590. 

(a)  Or   office.     Oakley  v.   Farrington,     &  M.  290  ;   Ostrom  v.  Calkins,   5  Wend. 
1  Johns.  Cas.  129.     Or  occupation.  Rush     263  ;  Chipnian  v.  Cook,  2  Tyler,  456. 
V.    Cavenaugh,    2    Barr,    187;    Brown   v.  (b)  Contra,  Duvh  v.   Ruff,  Cheves,  17, 

Mims,  2  Mill,  235  ;  Davis  v.  Davis,  1  Nott     holding  that  only  the  individual  slandered 

can  sue. 

73 


*  81  DEFAMATORY  WOEDS. 

A  married  woman,  carr}dng  on  a  separate  trade  according  to  the  custom  of  London, 
or  within  the  meaning  of  the  Married  Women's  Property  Act,  1870,  s.  1,  may  by  s.  11 
sue  without  joining  her  husband  for  any  tort  affecting  such  separate  trade  or  her  credit 
therein.     Summers  v.  City  Bank,  L.  R.  9  C.  P.  580  ;  43  L.  J.  C.  P.  261. 


*  82      *  IV.   Words  actionable  only  by  reason  of  special  damage. 

No  other  words  are  actionable  without  proof  of  special  damage. 
Thus,  to  accuse  a  man  of  fraud,  dishonesty,  immorality,  or  any 
vicious  and  dishonorable  (but  not  criminal)  conduct,  is  not  ac- 
tionable, unless  it  has  produced  as  its  natural  and  necessary  con- 
sequence some  pecuniary  loss  to  the  plaintiff. 

IlluMrations. 

Thus  the  following  words  are  not  actionable  without  proof  of  special  damage  :  — 

"  Thou  art  a  scurvy  bad  fellow."     Fisher  v.  Atkinson,  1  Roll.  Abr.  43. 

"  A  rogue,  a  villain,  and  a  varlet"  (for  these,  and  words  of  the  like  kind,  are  to  be 
considered  as  "words  of  heat").     Per  Cur.  in  Stanhope  v.  Blith,  4  Rep.  15. 

"A  runagate  rogue."     Cockaine  v.  Hopkins,  2  Lev.  214. 

"A  common  fileher."     Goodale  v.  Castle,  Cro.  Eliz.  554. 

"  A  cozening  knave."  Brnnkard  v.  Segar,  Cro.  Jac.  427  ;  Hutt.  13  ;  1  Yin.  Abr. 
427. 

"  Welcher."     Blaekman  v.  Biyant,  27  L.  T.  491. 

"You  are  a  swindler."  Savile  v.  Jardine,  2  H.  &  Bl.  531  ;  Black  v.  Hunt,  2  L. 
R.  Ir.  10. 

"  He  is  a  rogue  and  a  swindler  ;  I  know  enoiigh  about  him  to  hang  him."  Ward  v. 
"Weeks,  7  Bing.  211  ;  4  M.  &  P.  796. 

"  He  is  a  rogue,  and  has  cheated  his  brother-in-law  of  upwards  of  £2000."  Hop- 
wood  V.  Thorn,  8  C.  B.  293  ;  19  L.  J.  C.  P.  94  ;  14  Jur.  87. 

To  say  "  You  cheat  everybody,  you  cheated  me,  you  cheated  Mr.  Saun- 

*  83       *ders,"  is  not  actionable  unless  it  be  spoken  of  the  plaintiff  in  the  way  of  his 

profession  or  trade.     Davis  v.  Miller  ct  ux.,  2  Str.  1169. 

To  call  a  man  a  "  blackleg  "  is  not  actionable,  unless  it  can  be  shown  that  word  was 
understood  b}'  the  bystanders  to  mean  "a  cheating  gambler  liable  to  be  prosecuted  as 
such."  Bamett  v.  Allen,  3  H.  &  N.  376  ;  4  Jur.  N.  S.  488  ;  27  L.  J.  Ex,  412  ;  1  F. 
&  F.  125. 

In  an  American  case  the  difficulty  caused  by  absence  of  special  damage  was  sur- 
mounted by  suing  in  trespass  :  —  A  man  who,  instead  of  walking  along  the  street,  stops 
on  the  pavement  opposite  the  plaintiffs  freehold  shop  using  insulting  and  abusive  lan- 
guage towards  the  plaintiff,  and  persists  in  such  conduct  though  requested  to  move  on, 
is  a  trespasser,  and  the  jury  in  an  action  of  trespass  may  award  substantial  damages, 
though  no  special  damages  be  pi'oved,  and  although  the  abusive  words  he  not  actionable 
'perse;  Adams  v.  Rivers,  11  Barbour  (New  York)  Reports,  390.  For  as  one  of  the 
public  he  was  only  entitled  to  use  the  highway  for  passing  and  repassing.  Dovaston 
V.  Payne,  2  Sm.  Lg.  Cas.  (8th  ed.),  p.  142.  And  evidence  of  his  language  while  com- 
mitting a  trespass  is  properly  admitted  to  show  in  what  spirit  the  act  was  done.  Merest 
V.  Harvev,  5  Taunt.  442.     "  Where  a  wrongful  act  is  accompanied  by  words  of  con- 

74 


^ORDS   IMPUTIXG   liEMORALITY.  *  83 

tumely  and  abuse,  the  jury  are  warranted  in  taking  that  into  consideration  and  giving 
retributory  damages."  Per  Byles,  J.,  in  Bell  v.  Midland  By.  Co.,  10  C.  B.  N.  S.  2S7, 
308  ;  30  L.  J.  C.  P.  273  ;  9  W.  R.  612  ;  4  L.  T.  293. 

Words  imputing  immoral  conduct,  profligacy,  adultery,  &c., 
even  when  spoken  of  one  holding  an  office  or  carrying  on  a  pro- 
fession or  business,  will  not  be  actionable,  unless  they  "  touch 
him  "  in  that  office,  profession,  or  business.  Thus,  if  alleged  of 
a  beneficed  clergyman  they  will  be  actionable,  because  if  the 
charge  were  true  it  would  be  ground  for  degradation  or  depriva- 
tion, as  it  would  prove  him  unfit  to  hold  his  benefice  or  to  con- 
tinue in  the  active  duties  of  his  profession. ^  But  if  the  same 
words  were  spoken  of  a  trader,  or  even  of  a  physician  or  a  school- 
mistress, they  would  not  be  actionable  without  proof  of  special 
damage,  as  they  do  not  necessarily  affect  the  plaintiff  in  relation 
to  his  trade  or  profession.  The  imputation  must  be  connected 
with  the  professional  duties  of  the  plaintiff. 

*  Illustrations.  *  8-4 

Words  imputing  adultery  to  a  physician  were  laid  to  have  been  spoken  "of  him  in 
his  profession,"  but  there  was  nothing  in  the  declaration  to  connect  the  imputation 
with  the  plaintifTs  professional  conduct.  Held  that  the  words  were  not  actionable 
without  special  damage.     Ayre  v.  Craven,  2  A.  &  E.  2  ;  4  N.  &  M.  220. 

To  impute  prostitution  to  a  schoolmistress  is  not  actionable.  Per  Twisden,  J.,  in 
Wharton  v.  Brook,  Ventr.  21  ;  Wetherhead  v.  Armitage,  2  Lev.  233  ;  2  Show.  18  ; 
Freem.  277  ;  3  Salk.  328. 

And  words  imputing  immorality  to  a  trader  or  his  clerk  are  not  actionable  without 
special  damage.     Lumby  v.  AUday,  1  Cr.  &  J.  301  ;  1  Tyi'wh.  217. 

Nor  are  words  imputing  to  a  staj'maker  that  his  trade  is  maintained  by  the  prosti- 
tution of  his  shopwoman.  Brayne  v.  Cooper,  5  M.  &  W.  249.  But  now  see  Riding  v. 
Smith,  1  Ex.  D.  91 ;  45  L.  J.  Ex.  281  ;  24  W.  R.  487  ;  34  L.  T.  500. 

Words  imputing  unchastity  or  adultery  to  a  woman,  married 
or  unmarried,  however  gross  and  injurious  they  may  be,  are  not 
actionable  ;  unless  she  can  prove  that  they  have  directly  caused 
her  special  damage,  (a) 

1  Gallwey  v.  Marshall,  9  Ex.  294  ;  23  L.  J.  Ex.  78. 

(a)  This  is  held  in  Pollard  v.  Lyon,  91  tnie  would  subject  the  accused  to  an  in- 
U.  S.  225,  to  be  true  at  common  law  in  dictment  and  punishment  for  crime  involv- 
this  country,  so  far  as  it  refers  to  imputa-  ing  moral  turpitude,  or  subject  him  to  an 
tions  short  of  adultery  upon  unmarried  infamous  punishment,  is  the  same  action- 
women;  following  the  doctrine  especially  able  per  sc.  See  also  Berry  v.  Carter,  4 
of  Brooker  v.  Coffin,  5  Johns.  188.  The  Stewt.  &  P.  387  ;  Bassell  v.  Elmore,  48 
rule  in  these  and  in  some  other  cases  is  de-  N.  Y.  561  ;  Terwilligeru  Wands,  17  N.  Y. 
clared  to  be  that  only  where  the  charge  if  54  ;    Wilson  v.  Goit,  ib.  442  ;    Williams 

75 


84 


DEFAMATORY   "WORDS. 


As  to  what  constitutes  special  damage,  see  the  stringent  rules 
laid  down  in  c.  X.,  post,  pp.  308-333. 


V.  Hill,  19  Wend.  305  ;  Woodbury  v. 
Thompson,  3  N.  H.  194  ;  Underbill  v. 
Weltou,  32  Vt.  40  ;  Davis  v.  Brown,  27 
Obio  St.  326;  Stitzell  v.  Reynolds,  67 
Penn.  St.  54;  s.  c.  59  Penn.  St.  488;  Dot- 
tarer  v.  Bushey,  16  Penn.  St.  204;  Gosling 
V.  Morgan,  32  Penn.  St.  273  ;  Linney  v. 
jMaton,  13  Texas,  449.  Otber  courts,  pro- 
ceeding also  without  statute,  have  refused 
to  accept  the  rule  in  this  form,  and  one  of 
them  has  thus  stated  it:  Whenever  an  of- 
fence is  charged  which  if  proved  may  sub- 
ject the  accused  to  a  punishment,  though 
not  ignominious,  which  brings  disgrace 
upon  him,  the  same  is  actionable  per  se. 
ililler  V.  Parish,  8  Pick.  384.  See  further 
Rodgers  V.  Rodgers,  11  Heisk.  757  ;  Smith 
V.  Smith,  2  Sueed,  473  ;  Freeman  v.  Price, 
2  Bailey,  115.  In  like  manner  in  Georgia 
it  is  actionable  falsely  to  impute  to  another 
the  commission  of  a  crime  punishable  by 
law,  or  any  debasing  act  which  has  a  man- 
ifest tendency  to  exclude  him  from  society. 
Lewis  V.  Hudson,  44  Ga.  568.  And  so  far 
at  least  as  the  imputation  of  unchastity  to 
an  unmarried  female  is  concerned,  this  is 
now  generally  the  law  in  the  United  States 
by  statute.  Distiu  v.  Rose,  69  N.  Y.  122  ; 
Griffin  v.  IMoore,  43  Md.  246  ;  Frisbie  v. 
Fowler,  2  Conn.  707  ;  Gibson  v.  Wilson, 
43  Wis.  23  ;  ileyer  v.  Schleichter,  29  Wis. 
646  ;  Haley  v.  State,  63  Ala.  83 ;  Down- 
ing  1^.  Wilson,  36  Ala.  717  ;  Schmisseur  v. 
Kreilich,  92  111.  347  ;  Wilson  v.  Barnett, 
45  Ind.  163  ;  Emmerson  v.  Marvel,  55  Ind. 
265  ;  Cleaveland  v.  Detweiler,  18  Iowa, 
299 ;  Haynes  v.  Ritchey,  30  Iowa,  76 ; 
Sheehy  v.  Cokley,  43  Iowa,  183  ;  Richard- 
son ^.Roberts,  23  Ga.  215  ;  Williams  v. 
Greenwade,  3  Dana,  432  ;  Ruohs  v.  Backer, 
6  Heisk.  395  (libel) ;  Hackett  v.  Brown,  2 
Heisk.  264  (even  of  a  man,  ib.) ;  Duval  v. 
Davey,  32  Ohio  St.  604  ;  Burt  v.  McBain, 
29  Mich.  260  ;  Elfrank  v.  Seiler,  54  Mo. 
134  ;  McBrayert).  Hill,  4  Ired.  136;  Smith 
V.  Minor,  1  Coxe,  16  ;  Riddell  v.  Thayer, 
127  :Mass.  487  ;  California  Civil  Code, 
§  48,  1  ;  Ailams  v.  Rankin,  1  Duval,  58 
(man) ;  Patterson  v.  Wilkinson,  55  Maine, 
42  ;  Symonds  v.  Carter,  32  X.  H.  458. 
In  Alabama  to  charge  a  female  falsely  with 
unchastity,  though  by  oral  publication,  ia 

76 


indictable.  Haley  v.  State,  63  Ala.  83, 
89.  It  may  be  remarked  in  this  connec- 
tion that  there  is  probably  no  such  thing 
at  the  present  day  as  an  "  infamous  "  pun- 
ishment in  the  sense  in  which  the  term 
was  emplo)'ed  when  it  was  started.  As 
formerly  used  it  probably  referred  to  the 
peculiarly  humiliating  punishment  of  the 
pillorj',  the  stocks,  the  ducking-stool,  the 
gag  for  brawling  women,  the  punishment 
of  Hester  Prynne  (in  the  Scarlet  Letter), 
and  the  like.  The  only  survival,  perhaps, 
is  the  whipping-post  of  Delaware.  The 
word  "infamous,"  if  still  to  be  used, 
is  now  applicable  only  to  the  offence 
charged.  See,  e.g.,  where  the  term  is 
so  used,  Klumph  ■;;.  Dunn,  66  Penn.  St. 
141  (charge  of  adultery). 

Except  perhaps  in  Maryland,  it  is  ap- 
prehended that  a  false  imputation  of  the 
commission  of  adultery  is  actionable  per  se 
throughout  the  United  States.  Proctor  v. 
Houghtaling,  37  Mich.  41  ;  Georgia  v. 
Kepford,  45  Iowa,  48  ;  Waugh  v.  Waugh, 
47  Ind.  580  ;  Stieber  v.  Wensil,  19  Mo. 
513;  Walton  v.  Singleton,  7  Serg.  &  R. 
449  ;  Klumph  v.  Dunn,  66  Penn.  St.  141  ; 
Hoar  V.  Ward,  47  Vt.  657  ;  Merritt  v. 
Dearth,  48  Vt.  65  ;  Huddleson  v.  Swope, 
71  Ind.  430.  In  Marjdand  it  is  consid- 
ered that  such  an  imputation  is  not  ac- 
tionable because  the  offence  of  adultery 
is  in  that  State  punishable  only  by  fine  ; 
a  survival  apparently  of  the  old  distinc- 
tion based  upon  the  nature  of  the  punish- 
ment. Shafer  v.  Ahalt,  48  Md.  171  ; 
Griffin  v.  Moore,  43  Md.  246. 

To  charge  a  woman  with  "getting  fat  " 
(Emmerson  v.  Marvel,  55  Ind.  265),  or  of 
being  a  "bitch"  (Schurick  v.  Kollman, 

50  Ind.  336  ;  K v.  H ,  20  Wis. 

252),  or  with  being  a  "bad  woman"  (Rid- 
dell V.  Thayer,  127  Mass.  487),  or  with 
being  a  "bad  girl"  (Snell  v.  Snow,  13 
Met.  278  ;  Fitzgerald  v.  Robinson,  112 
Mass.  371,  382),  or  to  charge  a  man  with 
having  "intercourse  with"  the  female 
plaintiff  (Merritt  v.  Dearth,  48  Vt.  65)  ; 
such  charges,  though  false  if  taken  in  a 
defamatory  sense,  have  been  treated  as 
wanting  the  actionable  quality,  unless  ex- 
plained by  the  circumstances  as  intended 


WORDS  EVEPUTESTG   UXCHASTITY.  *  84 

The  only  exception  is  in  the  case  of  actions  brought  in  the  local  Courts 
of  the  city  of  London,  the  borough  of  SouthAvark,i  and  it  is  said  of  the  city 
of  Bristol,  for  words  spoken  within  the  jurisdiction  of  those  Courts.  It 
was  formerly  the  custom  in  those  localities  to  cart  and  whip  whores,  tin- 
ghng  a  basin  before  them.  Hence  to  call  a  woman  "  whore  "  or  "  strumpet "  2 
or  "  bawd  "  3  or  her  husband  a  "  cuckold  "  ^  was  supposed  to  be  an  imputa- 
tion of  a  criminal  offence  to  the  female  plaintiff,  and  therefore  actionable. 
But  no  action  will  He  in  any  of  the  superior  Courts  at  "Westminster  for  such 
words,  since  the  custom  has  never  been  certified  by  the  Eecorder  and  must 
therefore  be  strictly  proved.  It  was  found  impossible  to  prove 
such  a  custom  in  1782,  and  it  would  *  be  stiU  more  difficult  to  do  *  85 
so  in  the  present  day.  The  City  Courts  used  formerly  to  take  ju- 
dicial notice  of  their  own  custom ;  but  I  doubt  if  they  would  do  so  now, 
the  custom  being  entirely  extinct.^ 

Illustrations. 

To  say  of  a  young  woman  that  she  had  a  bastard  is  not  actionable  without  proof  of 
special  damage  ;  "because  it  is  a  spiritual  defamation,  j^unishable  in  the  spiritual 
court."     Per  Holt,  C.J.,  in  Ogden  v.  Turner,  Holt,  40  ;  6  Mod.  104  ;  2  Salk.  696. 

To  call  a  woman  "a  whore,"  or  "a  stnimpet "  is  not  actionable,  except  by  special 

^  Sid.  97.  2  Cook  V.  Wingfield,  1  Str.  555. 

?  1  Vin.  Abr.  396.  4  Vicars  v.  AVorth,  1  Str.  471. 

6  See  Oxford  et  ux.  v.  Cross  (1599),  4  Rep.  18  ;  Hassell  v.  Capcot  (1639),  1  Yin. 
Abr.  395  ;  1  Roll.  Abr.  36  ;  Cook  v.  Wingfield,  1  Str.  555  ;  Watson  v.  Gierke,  Comb! 
138,  139  ;  Stainton  et  ux.  v.  Jones,  2  Selw.  N.  P.  1205  (13th  ed.) ;  notes  [14]  and  [96] 
to  1  Dougl.  by  Frere,  p.  380  ;  Theyer  v.  Eastwick,  4  Burr.  2032  ;  Brand  and  wife  v. 
Roberts  and  wife,  4  Burr.  2418  ;  Rily  v.  Lewis,  1  Vin.  Abr.  396  ;  Vicars  v.  Worth,  1 
Str.  471  ;  Hodgkins  et  ux.  v.  Corbet  et  ux.  1  Str.  545  ;  Roberts  v.  Herbert,  Sid.  97  ; 
s.  c.  nom.  Cans  v.  Roberts,  1  Keble,  418. 

in  a  defamatory  sense.     So  too  to  charge  not  enough).     A  false  imputation  that  the 

a  woman  with  having  a  wanton  and  las-  plaintiff  has  committed  incest  is  actionable 

civious  disposition  is  held  not  actionable,  ^;cr  se.     Griggs  ■;;.  Vickroy,  12  lud.  549 ; 

Lucas  V.  Nichols,  7  Jones,  32.     Further,  Millison  v.  Sutton,  1  Ind.  508. 
what  constitutes  an  imputation  of  adul-  It  may  be  added  that  the  charge  of 

tery  or  fornication,  see  Waugh  v.  Waugh,  sodomy  is  actionable  per  se  in  Massachu- 

supra;  Hoar  v.  Ward,  supra;  Patterson  setts,  in  New  York,  in    Indiana,  and  in 

V.  Edwards,  7  111.  720  ;  Elam  v.   Badger,  Iowa.     Downs  v.  Hawlev,  112  Mass.  237  ; 

23  111.    498  ;   Shields  v.    Cunningham,   1  Kennedy  v.  Gifford,  19  Wend.  296  ;  Good- 

Blackf.  86  ;  Ricket  v.  Stanley,  6  Blackf.  rich  v.  Woolcott,  3  Cowen,  231  ;   s.  c.  5 

169 ;    Worth   V.    Butler,    7    Blackf.    251  ;  Cowen,   714  ;    Ausman  v.   Veal,   10  Ind. 

Proctor  V.   Owens,   18   Ind.   21  ;  Blicken-  355  ;    Havnes  v.   Ritchev,    30    Iowa,    76. 

staff!'.  Renin,  27  Ind.  527  ;  Patterson  v.  Contra  in  Ohio.     Da\-is  v.  Brown,  27  Ohio 

Wilkinson,  55  Maine,  42  ;  Dyeri;.  Morris,  St.   326.      It  is  not  actionable  ^vr  se  in 

4  Mo.  214  ;  Vanderiip  v.  Roe,  23  Penn.  New  York  to  falsely  charge  a  female  with 

St.  82  (".she  is  a  bad  character,  a  loose  committing  masturbation.      Anonymous, 

character");    K v.  H ,  20    Wis.  60  N.  Y.  262. 

239  (charging  desire  to  commit  adulteiy 

77 


*  85  DEFAMATORY  WOEDS. 

custom  if  the  action  be  tried  in  the  cities  of  London  and  Bristol.  "  To  maintain  ac- 
tions for  such  brabling  words  is  against  law."  Oxford  et  ux.  v.  Cross  (1599),  4  Rep. 
18  ;  Gascoigue  et  tue.  v.  Ambler,  2  Ld.  Eaym.  1004  ;  Power  v.  Shaw,  1  Wils.  62. 

It  is  not  actionable  to  call  a  woman  a  "bawd."  HoUingshead's  Case  (1632),  Cro. 
Car.  229  ;  Hixe  v.  Hollingshed  (1632),  Cro.  Car.  261.  Unless  it  be  in  the  City  of  Lon- 
don.    Rily  f.  Lewis  (1640),  1  Vin.  Abr.  396. 

The  words  "  You  are  living  by  imposture  ;  you  used  to  walk  St.  Paul's  Church- 
yard for  a  living,"  —  spoken  of  a  woman  with  the  intention  of  imputing  that  she  was  a 
swindler  and  a  prostitute,  —  are  not  actionable  without  special  damage.  "VVilby  v. 
Elston,  8  C.  B.  142  ;  18  L.  J.  C.  P.  320  ;  13  Jur.  706  ;  7  D.  &  L.  143. 

So  to  say  of  a  manied  man  that  he  has  "  had  two  bastards  and  shoidd  have  kept 

them"  is  not  actionable,  though  it  is  averred  that  by  reason  of  such  words  "discord 

arose  between  him  and  his  wife,  and  they  were  likely  to  have  been  divorced."     Bar- 

mund's  Case,  Cro.  Jac.  473  ;  Salter  v.  Browne,  Cro.  Car.  436  ;  1  Roll.  Abr.  397. 

*  86  *The  defendant  told  a  married  man  that  his  wife  was  "a  notorious  liar" 

and  "an  infamous  wretch,"  and  had  been  all  but  seduced  by  Dr.  C.  of  Eos- 
common  before  her  marriage.  The  husband  consequently  refused  to  live  with  her  any 
longer.  Held,  no  action  lay.  Lynch  v.  Knight  and  wife,  9  H.  L.  C.  577  ;  8  Jur.  N. 
S.  724  ;  5  L.  T.  291. 

Where  the  defendant  asserted  that  a  married  woman  was  guilty  of  adultery,  and  she 
was  consequently  expelled  from  the  congregation  and  bible  society  of  her  religious  sect, 
and  was  thus  prevented  from  obtaining  a  certificate,  without  which  she  could  not  be- 
come a  member  of  any  similar  society.  Held,  no  action  lay.  Roberts  and  wife  v. 
Roberts,  5  B.  &  S.  384 ;  33  L.  J.  Q.  B.  249  ;  10  Jur.  N.  S.  1027  ;  12  W.  R.  909  ;  10 
L.  T.  602. 

[It  does  not  appear  that  the  case  as  to  excommunication,  Barnabas  v.  Traunter,  1 
Vin.  Abr.  396,  ante,  p.  59,  was  cited  to  the  Court.] 

The  defendant  falsely  imputed  incontinence  to  a  married  woman.  In  consequence 
of  his  words  she  lost  the  society  and  friendship  of  her  neighbors,  and  became  seriously 
ill  and  unable  to  attend  to  her  affairs  and  business,  and  her  husband  incurred  expense 
in  curing  her,  and  lost  the  society  and  assistance  of  his  wife  in  his  domestic  affairs. 
Held  that  neither  husband  nor  wife  had  any  cause  of  action.  Allsop  and  wife  v.  AUsop, 
5  H.  &  N.  534 ;  29  L.  J.  Ex.  315  ;  8  W.  E.  449 ;  6  Jur.  N.  S.  433  ;  36  L.  T.  0.  S. 
290 ;  Riding  v.  Smith,  1  Ex.  D.  91  ;  45  L.  J.  Ex.  281 ;  24  W.  R.  487  j  34  L.  T.  500. 

Our  law  on  this  point  has  often  been  denounced  by  learned  Judges.  "  I 
may  lament  the  unsatisfactory  state  of  our  law  according  to  which  the  im- 
putation by  words  however  gross,  on  an  occasion  however  public,  upon  the 
chastity  of  a  modest  matron  or  a  pure  virgin,  is  not  actionable  without 
proof  that  it  has  actually  produced  special  temporal  damage  to  her,"  says 
Lord  Campbell,  L.C.,  in  Lynch  v.  Knight  and  wife.^  "  Instead  of  the 
word  '  unsatisfactory '  I  should  substitute  the  word  '  barbarous,'  "  says 
Lord  Brougham,  p.  594.  See  also  the  remarks  of  Willes,  C.J.,  in  Jones 
V.  Heme;  2  and  of  Cockburn,  C.J.,  Compton  and  Blackburn,  J  J.,  in  Rob- 
erts and  wife  v.  Eoberts.® 

1  9  H.  L.  C.  593;  5  L.  T.  291.  2  2  Wils.  87. 

8  5  B.  &  S.  384  ;  33  L.  J.  Q.  B.  249  ;  10  Jur.  N.  S.  1027  ;  12  W.  R.  909 ;  10  L.  T. 

602. 

78 


WOEDS   CAUSING   SPECIAL  DAMAGE.  *  86 

Two  explanations  may  be  assigned  for  the  undesirable  state  of  our  law 
on  this  point.  (1)  In  the  days  when  our  common  law  was  formed, 
every  one  was  much  more  accustomed  than  *  they  are  at  present  *  87 
to  such  gross  language,  and  epithets  such  as  "  whore  "  were  freely 
used  as  general  terms  of  abuse  without  seriously  imputing  any  specific  act 
of  unchastity.  (2)  The  spiritual  Courts  had  jurisdiction  over  such 
charges,  and  though  they  could  not  award  damages  to  the  plaintiff,  they 
could  punish  the  defendant  for  the  benefit  of  his  soul;  but  all  actions  in 
the  ecclesiastical  Courts  for  defamatory  words  were  abolished  by  the  18  & 
19  Vict.  c.  41,  and  no  attempt  was  made  to  substitute  any  remedy  in  the 
ordinary  courts  of  law.  In  Scotland  and  in  many  of  the  States  of  America 
a  verbal  imputation  of  unchastity  is  actionable  without  proof  of  special 
damage. 

The  hardship  is  increased  by  the  rules  relating  to  special  damage,  which 
are  peculiarly  stringent  in  the  case  of  a  married  woman.  That  her  husband 
has  sustained  special  damage  in  consequence  of  the  words  will  not  avail  for 
her.  And  unless  she  carry  on  a  separate  trade  or  business  of  her  own  un- 
der the  Married  Women's  Property  Act,  1870,  it  is  almost  impossible  for 
her  to  sustain  any  special  damage  to  herself,  for  all  her  property  is  in  law 
her  husband's.  That  she  loses  the  society  of  her  friends  is  no  special  dam- 
age; and  in  Lynch  v.  Knight  and  wife,^  Lord  Wensleydale  denied  that  the 
loss  of  the  consortium  of  her  husband  could  constitute  special  damage.  The 
only  object  of  insisting  on  proof  of  special  damage  is  to  secure  that  the 
plaintiff's  reputation  has  in  fact  been  seriously  impaired.  And  in  many  of 
these  cases  it  is  clear  that  this  was  so.  What  more  convincing  proof  of  loss 
of  reputation  could  be  adduced  than  the  fact  proved  by  Mrs.  Eoberts  that 
she  was  expelled  from  the  congregation,  and  not  allowed  to  continue  a 
member  of  her  religious  sect.  Yet  in  that  case  it  was  held  no  action  lay. 
Surely  it  is  high  time  that  some  alteration  should  be  made  in  our  law  on 
this  point. 

All  words,  if  published  without  lawful  occasion,  are  actionable, 
if  they  have  in  fact  produced  special  damage  to  the  plaintiff, 
such  as  the  law  does  not  deem  too  remote.  "  Any  words  by 
which  a  party  has  a  special  damage  "  are  actionable.^  "  Un- 
doubtedly all  *  words  are  actionable,  if  a  special  dam-  *  88 
age  follows."^ 

It  is  usual  to  qualify  the  generality  of  the  above  rule  by  adding  a  pro- 
viso, "provided  the  words  themselves  be  in  their  nature  defamatory."    But 

1  9  H.  L.  C.  577. 

2  Comyn's  Digest,  Action  upon  the  Case  for  Defamation,  D.  30. 
8  Per  Heath,  J.,  in  Moore  v.  Meagher,  1  Taunt.  44. 

79 


*88  DEFAMATOEY  WORDS. 

as  "  defamatory  words "  have  at  the  commencement  of  this  chapter  been 
defined  as  "  words  which  in  any  given  case  have  appreciably  injured  the 
plaintift''s  reputation,"  I  do  not  hke  to  use  the  phrase  "words  in  their  nat- 
ure defamatory."  It  is  not  defamatory  to  say  of  a  pork  butcher,  "he  knows 
no  law  :  he  cannot  draw  a  lease  ; "  it  is  defamatory  so  to  speak  of  a  solicitor. 
You  cannot  therefore  lay  down  a  priori  any  hard  and  fast  rule  as  to  which 
words  are  in  their  nature  defamatory,  and  which  are  not  so.  Each  case 
must  depend  on  its  own  circumstances. 

No  doubt  in  an  action  of  defamation  the  words  must  be  defamatory.  If 
that  be  aU  that  is  meant  by  the  above  proviso,  I  will  gladly  incorporate  it 
into  the  above  rule  together  with  my  definition  of  words  defamatory  :  when 
the  rule  would  run  thus  :  —  "  AU  words,  if  published  without  lawful  occa- 
sion, are  actionable,  if  it  be  proved,  by  evidence  of  special  damage  not  too 
remote,  that  they  have  in  fact  injured  the  plaintiff's  reputation ;  and  in 
such  cases  the  action  is  called  an  action  of  defamation  "  (using  that  phrase 
to  include  both  libel  and  slander).  The  converse  of  this  rule  will  be  "  No 
words  can  be  the  subject  of  an  action  of  defamation,  however  maliciously 
published,  and  although  they  have  caused  actual  damage  to  the  plaintiff, 
unless  it  is  also  proved  that  the  plaintiff's  reputation  has  in  fact  been 
thereby  injured." 

But  though  an  action  of  defamation  will  not  lie,  it  by  no  means  follows 
that  some  other  action  wiU  not  lie.  Wherever  a  defendant  speaks  words 
of  whatever  nature,  maliciously  intending  to  do  some  injury  to  the  plaintiff 
thereby,  and  the  words  have  their  desired  effect  and  do  actually  produce 
damage  to  the  plaintiff,  here  there  is  that  actionable  "  concurrence  of  loss 
and  injury,"  spoken  of  by  Lord  Campbell,  L.C.,  in  Lynch  v.  Knight  and 
wife ;  ^  and  an  ordinary  action  on  the  case  will  lie,  if  not  an  action  of  libel 

or  slander. 
*  89  *  The  head-note  in  Kelly  v.  Partington  *  is  the  direct  traverse 

of  the  above  proposition  :  — "  Held  that  the  words  were  not 
defamatory  in  their  nature,  and  therefore  not  actionable,  even  though  fol- 
lowed by  special  damage."  But  Kelly  v.  Partington  is,  if  I  may  say  so, 
a  silly  case.  It  turned  on  a  slip  in  the  pleadings.  The  defendant  said 
of  the  plaintiff,  "  She  secreted  Is.  6d.  under  the  till,"  and  then  added 
significantly  "These  are  not  times  to  be  robbed."  This  was  clearly  an 
insinuation  of  felony.  Verdict  for  the  plaintiff,  damages  Is.  On  taxation 
the  master  declined  to  allow  the  plaintiff  more  costs  than  damages.  The 
plaintiff's  counsel.  Sir  John  Campbell,  S.G.,  thereupon  argued  that  the 
second  count  was  not  actionable  without  proof  of  special  damage;  and 
succeeded  in  getting  a  rule  for  his  costs.  For  it  turned  out  that  the  pleader 
had  run  the  words  together  so  that  it  appeared  on  the  record  that  the 

1  9  H.  L.  C.  589.  2  5  B.  &  Ad.  645. 

80 


WOEDS   CAUSING  SPECIAL  DAMAGE.  *  89 

charge  against  the  plaintiff  was  this  :  "  She  secreted  Is.  Qcl.  under  the  till ; 
stating,  these  are  not  times  to  be  robbed."  There  was  no  innuendo  stating 
whose  money  it  was,  but  there  was  an  allegation  of  special  damage  that 
in  consequence  one  Stenning  had  refused  to  take  the  plaintiff  into  his 
service.  The  Court  was  therefore  pleased  to  take  the  words  as  spoken  in 
praise  of  the  plaintiff,  i.e.,  as  importing  merely  that  the  plaintiff  exercised 
great  caution  and  was  very  careful  of  her  own  money,  even  of  small 
amounts  of  it.  Sir  James  Scarlett  took  advantage  of  this  flaw  and  suc- 
ceeded in  arresting  judgment.  For  it  followed,  of  course,  that  Stenning's 
refusal  to  take  the  plaintiff  into  his  service,  because  the  defendant  had 
praised  her,  was  unreasonable,  and  not  the  natural  or  necessary  consequence 
of  the  defendant's  words.  And  the  only  decision  in  the  case  was  that  the 
special  damage  was  too  remote ;  and  a  very  harsh  decision  this  seems  to 
be,  in  these  days  when  pleadings  are  so  easily  amended.  The  Solicitor 
General  bould  not  now  go  back  and  argue  that  the  words  amounted  to  a 
charge  of  felony  and  were  actionable  2^er  se ;  for  on  the  argument  of  the 
previous  rule  he  had  been  only  too  successful  in  proving  that  the  words 
were  not  actionable  without  proof  of  special  damage.  He  was  driven 
therefore  to  contend  that,  if  praise  produced  special  damage,  praise  was 
actionable;  an  argument  with  which  the  Court  appeared  much 
amused.  Littledale,  J.,  *  puts  him  a  case  (p.  648),  "  Suppose  a  *  90 
man  had  a  relation  of  a  penurious  disposition,  and  a  third  person 
knowing  that  it  would  injure  him  in  the  opinion  of  that  relation,  tells  the 
latter  a  generous  act  which  the  first  had  done,  by  which  he  induces  the 
relation  not  to  leave  him  money,  would  that  be  actionable  1 "  And  Sir 
John  Campbell  answers,  "  If  the  words  were  spoken  falsely  with  intent  to 
injure,  they  would  be  actionable."  And  surely  he  is  right;  though  one 
sees  the  strange  position  the  plaintiff  would  be  compelled  to  adopt.  He 
would  have  to  come  forward  in  Court  and  declare,  "  I  am  not  generous,  I 
am  really  very  mean."  It  would  be  difficult  also  to  prove  the  intent  with 
which  the  words  were  spoken.  But  if  a  malicious  intent  be  clear,  the 
damage  is  not  too  remote,  for  the  defendant  contemplated  it ;  and  the 
speaking  of  the  words  was  wrongful  because  done  maliciously,  falsely,  and 
with  intent  to  injure  the  plaintiff;  so  here  is  et  damnum  et  injuria.  Lord 
Denman's  judgment,  be  it  observed,  turned  almost  entirely  on  the  absence 
of  any  innuendo  ;  that  of  Taunton,  J.,  on  the  remoteness  of  the  damage  ; 
while  Littledale  and  Patteson,  JJ.,  concurred  in  a  proposition,  which,  with 
all  submission,  I  cannot  understand,  that  "  to  make  the  speaking  of  the 
words  wrongful,  they  must  in  their  nature  be  defamatory,"  p.  651.  If  in 
a  small  country  town  where  poKtical  or  religious  feeling  runs  very  high, 
I  maliciously  disseminate  a  report,  false  to  my  knowledge,  that  a  certain 
tradesman  is  a  radical  or  a  dissenter,  knowing  that  the  result  will  be  to 
di'ive  away  his  customerSj  and  intending  and  desiring  that  residt,  then,  if 

6  81 


*  90  DEFAIVIATOEY  WOEDS. 

such  result  follows,  surely  I  am  liable  for  damages  in  an  action  on  the 
case,  if  not  in  an  action  of  slander.  And  yet  such  words  are  not  in  their 
nature  defamatory  :  for  many,  I  understand,  glory  in  such  titles.  This 
decision  (or  dictum)  in  Kelly  v.  Partington,  was  approved  and  adopted  in 
Sheahan  v.  Ahearne.^  But  there,  too,  this  was  not  the  real  ground  of 
the  judgment  of  the  Court ;  their  decision  turned  on  a  variance  between 
the  words  as  pleaded  and  the  evidence  at  the  trial.  In  Miller  v.  David,^ 
on  the  other  hand,  the  Court  treat  the  point  as  still,  at  least,  an 
open    question :  —  "It   is    not   necessary   to   consider  the   ques- 

*  91      tion   which   was  suggested   on   the    argument,    *  whether    words 

not  in  themselves  actionable  or  defamatory,  spoken  under  cir- 
cumstances and  to  persons  likely  to  create  damage  to  the  subject  of  the 
words,  are,  when  the  damage  follows,  ground  of  action.  The  judgment  of 
Lord  AYensleydale  in  Lynch  v.  Knight  and  wife,^  appears  in  favor 
of  the  affirmative  of  this  question.  But  it  is  not  necessary  for  us,  for 
the  reasons  given,  to  express  any  opinion  upon  it."  Again,  in  Western 
Counties  Manure  Co.  v.  Lawes  Chemical  Manure  Co.,*  Pollock,  B.,  cites 
with  approval  and  acts  upon  "the  general  rule  laid  down  as  to  such  actions 
in  Comyns'  Digest,  where  it  is  said  that  an  action  lies  when  special  damage 
is  shown."  So,  too,  in  Riding  v.  Smith,^  Huddleston,  B.,  says,  "The  dec- 
laration when  amended  would  stand  thus  :  that  the  plaintiff  carried  on 
business  as  a  grocer  and  draper,  and  was  assisted  in  the  conduct  of  his  busi- 
ness by  his  wife,  and  that  the  defendant  falsely  and  maliciously  published  of 
the  plaintiff's  wife  in  relation  to  the  business  that  she  had  committed  adul- 
tery, whereby  the  plaintiff  was  injured  in  his  business  and  sustained  special 
damage.  I  think  it  clear  that  on  a  declaration  so  framed  an  action  might  be 
maintained."  The  name  of  the  wife  as  a  party  to  the  action  had  been  pre- 
viously struck  out ;  and  the  words  were  not  defamatory  of  the  husband, 
for  they  in  no  way  refer  to  him.  And  in  the  same  case  (p.  94),  Kelly,  C.B., 
says,  "  Here  the  statement  was  that  the  wife  of  the  plaintiff  was  guilty 
of  adultery,  and  it  is  the  natural  consequence  of  such  a  statement  that 
persons  should  cease  to  resort  to  the  shop.  Supposing  the  statement  made 
not  to  be  slander,  but  something  else  calculated  to  injure  the  shopkeeper 
in  the  way  of  his  trade,  as  for  instance  a  statement  that  one  of  his  shop- 
men was  suffering  from  an  infectious  disease,  such  as  scarlet  fever,  this 
would  operate  to  prevent  people  coming  to  the  shop  ;  and  whether  it  be 
slander  or  some  other  statement  which  has  the  effect  I  have  mentioned,  an 
action  can,  in  my  opinion,  be  maintained  on  the  ground  that  it  is  a  state- 
ment made  to  the  public  which  would  have  the  effect  of  preventing  their 

1  9  Ir.  Eep.  C.  L.  412  (1875). 

2  L.  E.  9  C.  P.  126  ;  43  L.  J.  C.  P.  84  ;  22  W.  R.  332  ;  30  L.  T.  58. 

3  9  H.  L.  C.  600.  4  L.  R.  9  Exch.  223 ;  43  L.  J.  Ex.  171. 
6  1  Ex.  Div.  96. 

82 


WORDS   CAUSING  SPECIAL  DAMAGE.  *  91 

resorting  to  the  shop  and  buying  goods  of  the  owner."     And  see  Levet's 
case/  and  Green  v.  Button.^ 

I  conchide,  therefore,  that  if  a  defendant  either  knows  or  *  ought  *  92 
to  know  that  certain  special  damage  will  follow  from  his  words,  and 
speaks  those  words,  desiring  and  intending  that  such  damage  shall  follow, 
or  recklessly  indifferent  whether  such  damage  follows  or  not  therefrom, 
then  if  the  words  be  false,  and  if  such  damage  does  in  fact  follow  directly 
from  their  use,  an  action  on  the  case  will  lie  against  him  for  such  damage, 
whatever  be  the  nature  of  the  words. 

1  Cro.  Eliz.  289,  ante,  p.  77.  ^  2  C.  M.  &  R.  707,  post,  p.  149. 

83 


*93  *  CHAPTER  III. 

CONSTRUCTION  AND   CERTAINTY. 

Construction  is  the  correct  interpretation  of  words,  the  giving 
them  their  true  meaning,  the  method  of  ascertaining  the  sense  in 
which  they  were  understood  by  those  who  first  heard  or  read 
them. 

What  meaning  the  speaker  intended  to  convey  is  immaterial  in 
all  actions  of  defamation.  He  may  have  spoken  without  any  in- 
tention of  injuring  the  plaintiff's  reputation,  but  if  he  has  in  fact 
done  so,  he  must  compensate  the  plaintiff.  He  may  have  meant 
one  thing  and  said  another :  if  so,  he  is  answerable  for  so  inade- 
quately expressing  his  meaning.  Or  he  may  have  used  am- 
biguous language  which  to  his  mind  was  harmless,  but  to  which 
the  bystanders  attributed  a  most  injurious  meaning  :  if  so  he  is 
liable  for  the  injudicious  phrase  he  selected.  What  was  passing 
in  his  own  mind  is  immaterial,  save  in  so  far  as  his  hearers  could 
perceive  it  at  the  time.  Words  cannot  be  construed  according 
to  the  secret  intent  of  the  speaker.^ 

The  question  is  always:  How  would  ordinary  Englishmen, 
previously  unacquainted  with  the  matter,  fairly  understand  the 
words  ?  (a)  We  must  assume  that  they  give  to  ordinary  English 

1  Hankinson  v.  Bilby,  16  M.  &  W.  445  ;  2  C.  &  K.  440. 

{a)  See  Fawsett  v.  Clark,  48  Md.  494  ;  Mass.  37  ;  Whittemore  v.  Weiss,  33  Mich. 

Lewis  V.  Hudson,  44  Ga.  568  ;  Desmond  348.     These  cases  show  that  the  presump- 

V.  Bro'rni,  33  Iowa,  13  ;  McCaleb  v.  Smith,  tive  meaning  of  words  in  common  use  is 

22  Iowa,  242  ;  Dixon  v.  Stewart,  33  Iowa,  the  ordinary  popular  meaning  as  distin- 

125  ;    McLaughlin   v.    Bascom,  38  Iowa,  guished   from   any  secondary  (such   as  a 

660  ;   Barton  v.  Holmes,   16   Iowa,   252  ;  technical)' meaning.    See  Rodgers  v.  Kline, 

Dowuinc  V.  Brown,  3  Col.  571  ;  Nelson  v.  56   Miss.    808.     This   doubtless  proceeds 

Borchenius,  52  111.   236  ;    Miller  v.  John-  upon  the  assumption  that  the  hearers  or 

son,  79  111.  58  ;  Barnes  v.  Hamon,  71  111.  readers  addressed  are  not  persons  of  some 

609  ;  Weil  v.  Schmidt,  28  Wis.  137  ;  Rod-  special  training  ;  if  the  words  are  addressed 

gers  V.  Kline,   56  Jkliss.  808  ;   Stewart  v.  to  specialists  in   some  particular   depart- 

Wilson,  23  Minn.  449  ;  Downs  v.  Hawley,  ment  of  knowledge,  e.g.  to  physicians,  and 

112  Mass.  237  ;  Brettun  v.  Anthonj',  103  among  such  the  technical  is  the  common 

84 


CONSTRUCTIOIJr. 


93 


words  their  ordinary  English  meaning,  to  local  or  technical  phrases 
their  local  and  technical  meaning.    That  being  done,  what 
meaning  *  would  the  whole  passage  convey  to  an  unbiassed      *  94 
mind? 

This  is  clearly  rather  a  question   for  the   jury  than  for  the 


meaniug,  that  will  doubtless  be  presump- 
tively the  meaniug  to  be  given  the  lan- 
guage. 

But  this  brings  us  to  a  difficulty.  When 
it  is  said  that  a  popular  or  a  technical 
meaniug  is  under  the  circumstances  the  one 
presumptively  to  be  applied,  it  is  implied 
that  another  meaning  may  be  shown  to 
have  been  intended  or  understood  ;  how 
this  shall  be  done  is  not  entii-ely  agreed. 
In  the  first  place  there  is  some  difference 
of  authority  as  to  the  province  of  the  couit 
and  the  jury  in  such  cases  even  in  ques- 
tions of  slander,  not  to  mention  cases  of 
libel ;  which  will  be  considered  later.  It 
has  been  said  in  a  recent  case  upon  the 
authority  of  Button  v.  Heywood,  8  Mod. 
24,  that  when  the  words  are  ambiguous,  as 
they  would  be  where  e.g.  they  have  both 
a  popular  and  a  technical  meaning,  they 
are  to  be  construed  raitiori  scnsu.  John- 
son V.  St.  Louis  Despatch  Co.,  65  Mo.  539. 
But  this  doctrine,  as  the  author  shows 
(pp.  95,  96),  was  long  since  exploded  in 
England  ;  the  most  pointed  declaration 
against  it  being  foand  perhaps  in  Peake 
V.  Oldham,  1  Cowp.  275,  by  Lord  Mans- 
field. See  s.  c.  Bigelow's  L.  C.  Torts,  73. 
The  doctrine  never  really  obtained  a  foot- 
hold in  this  country.  See  e.g.  Davis  v. 
Johnston,  2  Bailey,  579  ;  Hugley  v.  Hug- 
ley,  lb.  592;  Chaddockv.  Briggs,  13  Mass. 
248,  254.  The  universal  doctrine  now  is 
that  the  meaning  of  ambiguous  words  is  to 
be  left  to  the  jury,  with  the  right  of 
course  to  find,  if  the  facts  justify,  that  they 
were  intended  or  reasonably  understood  to 
have  been  used  in  a  sense  to  make  them 
actionable  per  se.  See  the  cases  above 
cited  ;  and  especially  Rodgers  v.  Kline,  56 
Miss.  808  ;  Monongahela  Nav.  Co.  v. 
Coons,  6  Watts  &  S.  101,  114  ;  Sanderson 
V.  Caldwell,  45  N.  Y.  398  ;  Downs  v.  Haw- 
ley,  112  Mass.  237  ;  Haley  v.  State,  63 
Ala.  89  ;  Robinson  v.  Drummond,  24  Ala. 
174  ;  Chamberlin  v.  Vance,  51  Cal.  75  ; 
Maynard  v.  Fireman's  Ins.  Co.,  34  Cal.  48, 
59  ;  Waugh  v.  Waugh,  47  Ind.  580. 


So  far  as  there  may  be  decisions  really 
opposed  to  this  proposition  (and  there  may 
be  one  or  two),  they  are  certainly  to  be 
treated  as  wanting  in  authority.  There 
are  however  some  apparent  exceptions  to  the 
rule  in  question,  but  the  exceptions  are 
only  apparent.  When  a  question  concern- 
ing the  words  alleged  arises  upon  demui-- 
rer,  it  must  appear  upon  the  whole  decla- 
ration that  they  are  clearly  defamatory. 
The  facts  are  then  to  be  taken,  and  prop- 
erly taken,  most  strongly  against  the  plead- 
er ;  and  if  to  the  court  they  thus  seem 
ambiguous,  they  cannot  be  pronounced  de- 
famatory. Kennedy  v.  Gifibrd,  19  Wend. 
296  ;  MiUer  v.  Maxwell,  16  Wend.  9.  See 
Ward  V.  Clark,  2  Johns.  10  ;  Shreyer  v. 
Miller,  18  W.  Va.  158.  But  this  is  simply 
because  the  court  is  compelled  to  judge 
without  reference  to  the  real  facts.  If 
upon  the  same  declaration  (no  demurrer 
having  been  interposed)  the  facts  were 
found  and  the  words  showTi  to  have  been 
used  in  an  actionable  sense,  the  court  would 
not  refuse  to  accept  the  finding  upon  any 
notion  that  they  were  to  be  taken  rniti- 
scnsu,  so  long  as  there  -was  no  variance 
Kennedy  v.  Gilford,  siipra ;  Dowus  v. 
Hawley,  112  Mass.  237.  See  Lee  v.  Kane, 
6  Gray,  495  ;  Clay  v.  Brigham,  8  Gray, 
161.  As  for  Ward  v.  Clark,  supra,  there 
is  nothing  to  show  that  evidence  was  pro- 
duced sufficient  to  make  good  the  de- 
ficiency of  the  declaration.  The  verdict 
was  general,  and  the  case  was  carried  up 
on  a  writ  of  error  to  rulings  below.  The 
effect  of  the  case  is  the  same  as  that  of 
a  ruling  upon  demurrer. 

There  is  another  apparent  exception 
somewhat  more  obscure.  According  to  the 
general  current  of  authority  an  allegation 
that  the  plaintiff  has  been  falsely  charged 
by  the  defendant  with  the  commission  of 
a  crime,  such  for  example  as  larceny  or 
perjuiy,  is  not  supported  either  upon  de- 
murrer or  upon  the  evidence  by  words 
which  in  point  of  law  fall  short  of  charg- 
ing the   crime  in  question  ;  though  most 

85 


*94 


CONSTRUCTION  AND  CERTAINTY. 


judge.  And  accordingly  by  the  32  Geo.  3,  c.  60  (Fox's  Libel 
Act),  it  is  expressly  provided  that  in  all  criminal  proceedings  for 
libel,  the  jury  are  to  decide  the  question  of  libel  or  no  libel,  sub- 
ject to  the  direction  of  the  judge.  In  civil  proceedings  for  libel, 
the  practice  is  the  same,^  save  that  here  if  the  judge  thinks  that 

1  Baylis  v.  Lawrence,  11  A.  &  E.  920  ;  3  Perry  &  D.  526,  4  Jur.  652. 


people  miglit  suppose  that  the  language 
charged  au  actual  crime.  See  the  note 
on  larceny,  post,  p.  122  ;  and  see  Ward  v, 
Clark,  2  Johns.  10  ;  s.  c.  Bigelow's  L.  C. 
Torts,  81  ;  Hotchkiss  v.  Olmstead,  37  Ind. 
74  ;  Abrams  v.  Smith,  8  Blackf.  95  ;  Car- 
michael  v.  Shiel,  21  Ind.  66  ;  Dexter  v. 
Taber,  12  Johns.  239.  This  appears  to  be 
true  though  there  may  have  been  a  clear  in- 
tent to  defame  the  plaintiff,  and  though  the 
plaintiff  may  well  have  suffered  in  reputa- 
tion from  the  language.  But  while  this 
appears  to  be  the  settled  view  of  most  of 
the  courts,  some  of  the  courts  have  hes- 
itated to  go  so  far.  See  Tillman  v.  Wil- 
lis, 61  Ga.  433 ;  Stern  v.  Katz,  38  Wis. 
136  ;  Kennedy  v.  Gifford,  19  Wend.  296  ; 
post,  p.  122,  note.  The  last-named  case 
indeed,  proceeding  apparently  upon  the 
ground  of  taking  the  sense  of  the  language 
from  the  test  of  actual  defamation,  declares 
that  words  supposed  by  the  uninstructed  by- 
standers to  charge  indictable  crime  are  ac- 
tionable though  in  hiw  they  fall  short  of  it. 
But  if  cases  of  this  kind  are  not  to  be  con- 
sidered as  supported  by  the  current  of  au- 
thority, it  may  then  be  enough  to  say  that 
the  exception  found  in  this  rule  that  the 
Avords  must  charge  a  crime  in  law  pro- 
ceeds perhaps  upon  the  notion  that  the 
hearers  with  the  facts  stated  or  before  them 
are  supposed  to  know  the  law,  and  (know- 
ing that)  to  know  that  no  crime  is  im- 
puted. Further  than  this  however  the 
words  are  to  be  left  to  the  jury  when  am- 
biguous ;  if  on  the  other  hand  no  ques- 
tion of  their  meaning  arises,  it  is  for  the 
court  to  say  (in  a  case  of  slander)  whether 
they  are  defamatory  or  not.  It  is  no  ob- 
jection indeed  that  the  words  are  peculiar  ; 
if  they  have  a  general  and  notorious  mean- 
ing the  court  will  not  ask  the  jury  what 
that  is.  Clarke  v.  Fitch,  41  Cal.  472. 
See  to  the  same  effect  Bailey  v.  Kalamazoo 
Pub.  Co.,  40  Mich.  251,  256,  in  regard  to 
knowledge  of  current  phrases.  Nor  is  it 
any  objection  that  the  court  may  need  to 

86 


look  into  a  dictionary  to  ascertain  their 
meaning.  Such  fact  does  not  necessarily 
indicate  that  the  words  are  ambiguous. 
Rodgers  v.  Kline,  56  Miss.  808.  (The 
dictionary  rather  than  an  expert  should 
be  examined  when  the  words  are  i)opular. 
lb.) 

The  next  difficulty  is  concerning  the 
mode  of  proving  the  sense  to  be  applied  to 
the  words  where  no  question  arises  of  the 
right  to  show  the  same  in  some  way.  The 
precise  difficulty  is  whether  a  bystander  or 
a  reader  shall  be  permitted  to  state  liow  he 
understood  the  language.  It  is  in  sub- 
stance generally  said  with  reference  to  un- 
ambiguous words,  and  sometimes  even 
with  reference  to  words  of  double  import, 
that  to  permit  evidence  of  this  kind  is  to 
permit  evidence  of  opinion  or  impression 
when  facts  only  should  be  adduced.  Snell 
V.  Snow,  13  Met.  278  ;  Barnes  v.  Hamon, 
71  111.  609  ;  Van  Vechten  v.  Hopkins,  5 
Johns.  211  ;  Gibson  v.  Williams,  4  Wend. 
320  ;  White  v.  Sayward,  33  Maine,  322  ; 
Sternau  v.  Marx,  58  Ala.  608  ;  Downing 
V.  Brown,  3  Col.  571  ;  Cresinger  v.  Eeed, 
25  Mich.  450  ;  Briggsv.  Byrd,  11  Ind.  353  ; 
Skull  V.  Raymond,  23  Minn.  66  ;  Pitts 
V.  Pace,  7  Jones,  558  ;  McCue  v.  Ferguson, 
73  Penn.  St.  333  ;  Rangier  v.  Hummel,  37 
Penn.  St.  133.  See  Stacy  v.  Portland 
Pub.  Co.,  68  Maine,  279  ;  Jarnigan  v. 
Fleming,  43  Miss.  710  ;  Titus  v.  Sumner, 
44  N.  Y.  266.  Refusal  of  the  witnesses' 
understanding  however  is  to  be  confined, 
according  to  Stacy  v.  Portland  Pub.  Co., 
Jarnigan  v.  Fleming,  and  the  authorities 
generally,  to  cases  where  the  words  are  in 
themselves  free  from  ambiguity,  their  de- 
famatory sense  being  found  directly  in  the 
words  (Sternau  v.  Marx,  58  Ala.  608  ; 
Nelson  v.  Borchenius,  52  111.  236)  ;  audit 
was  held  in  the  first  of  these  cases,  Stacy 
V.  Portland  Pub.  Co.,  upon  the  authority 
of  Leonard  v.  Allen,  11  Cush.  241,  that 
when  the  speaker's  meaning  was  conveyed 
not  in  direct  terms  but  by  incomplete  ex- 


COXSTETJCTION". 


94 


the  words  cannot  possibly  bear  a  defamatorj^  meaning,  he  may- 
shorten  the  proceedings  by  a  nonsuit.  "  It  is  only  when  the 
judge  is  satisfied  that  the  publication  cannot  be  a  libel,  and  that, 
if  it  is  found  by  the  jury  to  be  such,  their  verdict  will  be  set 


pressions,  or  by  signs  or  gestures,  or  tones 
of  the   voice,  witnesses  might  state  what 
they  understood  thereby.     Probably  all  of 
the    authorities   would   now   agi'ee    upon 
both  of  these  propositions.      Where   the 
words  are  defamatory  on  their  face,  and  no 
evidence  drawn  from  the  circumstances  of 
publication  is  offered  in  explanation,  it  can- 
not be  permitted  a  person  to  state  that  he 
did  not  understand  the  language  to  have 
been  used  in  a  defamatory  sense.     In  such 
a  case  the  test  is,  what  the  hearers  as  men 
of  average  intelligence  would  understand, 
not  what  they  did  understand.     See  Han- 
kinsonv.  Bilby,  16  Mees.  &W.  442  ;  Per- 
ry V.  jMan,  1  R.  I.  263  ;  Downs  v.  Hawley, 
112  Mass.  237  ;  Brettun  v.  Anthony,  103 
Mass.  37  ;  Nelson  v.   Borchenius,    52   111. 
236  ;    Dix    v.    Stewart,    33    Iowa,   125  ; 
More  V.  Bennett,  48  N.  Y.  472.    As  to  the 
other  part  of  the  rule  in  Stacy  v.  Portland 
Pub.  Co.,  that  part  imjilies  that  evidence 
of  the  incomplete  expressions,  the  signs, 
gestures,  or  tones  of  voice  has  been  given  ; 
and  when  the  facts,  being  of  doubtful  im- 
port in  themselves,   are  shown,  there  can 
be  no  very  strong  objection  to   permit  a 
hearer  to  state  what  he  understood  from 
such  facts.     Leonard  v.  Allen,  11  Cush. 
241  ;    Goodrich  v.   Davis,    11    Met.    484  ; 
Miller  v.   Butler,   6   Cush.   71  ;  Smart  v. 
Blanchard,  42  N.  H.  137  ;  Mix  v.  Wood- 
ward, 12  Conn.  262  ;    Tompkins  v.  Wise- 
ner,  1  Sneed,  558  ;  Morgan  v.  Livingston, 
2  Rich.  573  ;  McLaughlin  v.   Russell,   17 
Ohio,  475  ;  Smawley  v.  Stark,  9  Ind.  388  ; 
Tompkins  v.  Weisse,   1    Sandf.  457.     But 
Snell  V.  Snow,  13  Met.  278,  is  perhaps  in 
principle    opposed  to    this  view,   though 
distinguished  in  Leonard  v.  Allen,  supra, 
in  that  it  was  a  case  of  naked  conversa- 
tion,   the  whole   language    being   capable 
of  statement  to  the  jury.     It  is  doubtful 
however   even  within  these  limits  if  Snell 
V.  Snow  would  now  be  generally  followed. 
It   should   further  be   observed  that   the 
Pennsylvania  case  cited  siqji'a,  McCue  v. 
Ferguson,  73  Penn.   St.  333,  drew  a  dis- 
tinction concerning  opinions  regarding  the 


person  intended  by  defamatory  language 
between  language  in  the  third  person,  as 
"  He  is  a  thief,"  and  language  in  the 
second  person,  as  "  You  are  a  thief."  It 
was  held  that  witnesses  could  not  state 
who  was  meant  in  the  first  case,  but  could 
so  state  in  the  second  case.  Other  cases 
however  take  the  broad  position  that  where 
the  language  does  not  show  who  was  in- 
tended, hearers  may  state  the  facts  and 
their  understanding  of  them  ;  as  e.g.  that 
they  knew  the  parties  and  were  familiar 
with  their  relations  towards  each  other, 
and  understood  that  the  words  referred 
(or  did  not  refer)  to  the  plaintiff,  the  wit- 
ness being  subject  of  course  to  cross-ex- 
amination concerning  the  facts.  Russell 
V.  Kelly,  44  Cal.  641  ;  Howe  Machine  Co. 
V.  Souder,  58  Ga.  64  ;  Miller  v.  Butler, 
6  Cush.  71  ;  Smawley  v.  Stark,  9  lud. 
386  ;  Keesling  v.  MeCall,  36  Ind.  321 ; 
De  Armond  v.  Armstrong,  37  Ind.  35.  To 
this  rule,  as  has  already  been  intimated, 
there  can  be  little  objection.  The  distinc- 
tion between  opinion  or  understanding  and 
fact  nearly  fades  out  in  such  cases  ;  and  it 
is  almost  if  not  quite  tantamount  to  say- 
ing that  a  witness  may  detail  the  facts  to 
say  that  he  may  state  who  in  his  view 
was  meant.  In  detailing  the  facts  upon 
such  a  question  it  would  be  exceedingly 
difficult  if  not  impossible  for  a  witness  to 
refrain  from  showing  his  understanding  of 
the  person  intended  ;  and  if  the  rule  of 
excluding  evidence  of  understanding  were 
to  be  really  adopted,  it  should  be  carried 
out  by  excluding  evidence  of  all  but  direct 
facts  such  as  admissions.  A  rule  of  this 
kind  would  sacrifice  the  substance  of 
things  for  a  mere  abstraction.  However, 
the  opinion  or  understanding  of  the  wit- 
ness should  not  be  admitted  without  a 
statement  of  the  facts  upon  which  he  bases 
the  same. 

The  result  then  appears  to  be  this  :  (1) 
Where  the  words  are  unambiguous  the 
court  will  not  jiermit  hearers  or  readei-s  to 
say  how  they  understood  them  ;  though 
evidence  of  the  circumstances  under  which 

87 


94 


CONSTRUCTION  AND  CEETAINTY. 


aside,  that  he  is  justified  in  withdrawing  the  question  from  their 
cognizance."  ^  (a) 

If,  however,  the  judge  considers  that  words  are  reasonably  sus- 
ceptible of  a  defamatory  meaning  as  well  as  an  innocent  one,  it 
will  then  be  a  question  for  the  jury  which  meaning  the  words 
would  convey  to  ordinary  Englishmen  who  heard  or  read  them 
without  any  previous  knowledge  of  the  circumstances  to  which 

1  Per  Kelly,  C.B.,  L.  R.  4  Exch.  288  ;  and  see  Fray  v.  Fray,  17  C  B.  N.  S.  603  ; 
34  L.  J.  0.  P.  45  ;  10  Jur.  N.  S.  1153  ;  Teacy  v.  McKeuna,  Ir.  Pu  4  C.  L.  374 ;  Hunt 
V.  Goodlake,  43  L.  J.  C.  P.  54  ;  29  L.  T,  472. 


the  publication  was  made  may  be  shown 
for  the  purjiose  of  proving  the  words  de- 
famatory when  apparently  they  are  not,  or 
the  contrary  when  apparently  they  are 
defamatory.  Myers  ■;;.  Dresden,  40  Iowa, 
660  ;  Sternau  v.  Marx,  58  Ala.  608  ;  Wil- 
liams V.  Cawley,  18  Ala.  208  ;  Young  v. 
Gilbert,  93  111.  595.  (2)  Where  the  words 
are  ambiguous  either  in  respect  of  the 
charge  or  of  the  person  intended,  the 
hearers  may  upon  detailing  the  facts,  but 
not  otherwise,  state  theii-  understanding  of 
the  words  or  of  their  intended  object.  It 
may  be  added  that  subsequent  publications 
of  the  same  defamation  by  the  defendant 
in  which  he  refers  to  the  plaintiff  by  name 
are  held  admissible  to  show  that  the  plain- 
tiff was  intended  by  the  language  in  suit. 
Eussell  V.  Kelly,  44  Cal.  641  ;  Chubb  v. 
Westly,  6  Car.  &  P.  436  ;  White  v.  Say- 
ward,  33  Maine,  323. 

(a)  The  authorities  in  this  country  are 
divided  in  regard  to  the  province  of  the 
court  and  jury  in  questions  of  libel.  It  is 
of  course  agreed  that  the  court  may  always 
be  required  to  pass  upon  the  effect  of  the 
language  by  a  demurrer  to  the  declaration 
or  to  a  particular  count,  and  also  to  say 
whether  the  language  is  ambiguous  and 
capable  of  a  libellous  meaning.  Van  Vac- 
tor  V.  Walkup,  46  Cal.  124.  But  whether 
the  court  has  the  right  in  other  cases  (ex- 
cept upon  a  question  whether  the  verdict 
is  contrary  to  the  evidence)  to  do  more 
than  define  the  term  libel  and  then  leave 
it  wholly  to  the  jury  to  decide  if  the  lan- 
guage proved  comes  within  the  definition, 
is  not  agreed.  The  English  practice  is 
followed  both  in  criminal  and  in  civil 
cases  in  several  of  the  States.     Shattuck 


V.  Allen,  4  Gray,  540  ;  Van  Vactor  v. 
Walkup,  46  Cal.  124  ;  State  v.  Gould,  62 
Maine,  509. 

In  other  States  the  English  practice, 
at  least  in  regard  to  civil  cases,  is  not  fol- 
lowed ;  the  court  pronouncing,  when  the 
words  are  free  from  ambiguity  and  from 
evidence  tending  to  change  their  natural 
meaning,  whether  they  are  libellous  or  not 
and  instructing  the  jury  accordingly  as 
matter  of  law.  Snyder  v.  Andrews,  6 
Barb.  43 ;  ilatthews  v.  Beach,  5  Sandf. 
256  ;  Green  v.  Telfair,  20  Barb.  11  ;  Hunt 
V.  Bennett,  19  N.  Y.  173  ;  More  v.  Ben- 
nett, 48  N.  Y.  472  ;  Pittock  v.  O'Niell,  63 
Penn.  St.  253  ;  Pugh  v.  McCarty,  44  Ga. 
883  ;  s.  c.  40  Ga.  444  ;  Gabe  v.  McGinnis, 
68  Ind.  538  ;  Gregory  v.  Atkins,  42  Vt. 
237  ;  Gottbehuet  v.  Hubachek,  36  Wis. 
515.  In  criminal  cases  the  rule  in  Penn- 
sylvania and  probably  generally  is  other- 
wise. Pittock  V.  O'Niell,  supra.  So  too 
it  must  be  left  to  the  jury  to  say  whether 
the  language  is  libellous  or  not  where  the 
question  depends  upon  evidence  to  be  ad- 
duced in  connection  with  the  publication  ; 
the  same  rule  prevailing  as  in  similar  cases 
of  slander.  Matthews  v.  Beach,  5  Sandf. 
256.  See  ante,  p.  93,  note.  Written  lan- 
guage apparently  defamatory  or  not  is  in 
law  capable  of  the  same  sort  of  modifica- 
tion by  explanatory  evidence  as  oral  lan- 
guage. Maynard  v.  Fireman's  Ins.  Co., 
47  Cal.  207.  Of  course  the  whole  publica- 
tion must  be  considered  together  where  it 
is  ui'ged  that  the  language  complained  of  is 
modified  by  other  language  of  the  same 
publication  taking  away  the  supposed 
libellous  sense  of  that  sued  for.  Van 
Vactor  V.  Walkup,  46  Cal.  124. 


CONSTRUCTION.  *  94 

they  relate.^  The  judge  is  in  no  way  bound  to  state  to  the  jury 
his  own  opinion  on  the  point ;  it  would,  in  fact,  be  wrong  for 
him  to  lay  down  as  a  matter  of  law,  that  the  publication  com- 
plained of  was,  or  was  not,  a  libel.^  The  proper  course  is  for  the 
judge  to  define  what  is  a  libel  in  point  of  law,  and  to  leave 
it  to  the  jury  to  say  whether  the  publication  *  in  question  *  95 
falls  within  that  definition.^  And  this  is  a  question  pre- 
eminently for  the  jury ;  whichever  way  they  find,  the  Court  will 
not  disturb  the  verdict,  if  the  question  was  properly  left  to  them. 
So  too  in  cases  of  slander,  the  judge  usually  decides  whether 
the  words  are,  or  are  not,  actionable  per  se,  and  whether  the 
special  damage  assigned  is,  or  is  not,  too  remote.  If  the  defend- 
ant's words  cannot  reasonably  bear  the  meaning  ascribed  to  them 
by  the  innuendo,  and  the  judge  thinks  the  words  without  that 
meaning  are  not  actionable,  he  will  stop  the  case.  So,  too,  if  the 
words  even  with  the  alleged  meaning  are  not  actionable  (though 
pleaders  seldom  err  on  that  side).  But  in  all  other  cases,  where 
there  is  any  reasonable  doubt  as  to  the  true  construction  of  the 
words,  the  judge  leaves  the  question  to  the  jury.  All  circum- 
stances which  were  apparent  to  the  bystanders  at  the  time  the 
words  were  uttered  should  be  put  in  evidence,  so  as  to  place  the 
jury  as  much  as  possible  in  the  position  of  such  bystanders  ;  and 
then  it  is  for  the  jury  to  say  what  meaning  such  words  would 
fairly  have  conveyed  to  their  minds.  And  their  finding  is  final 
and  conclusive  on  the  point ;  the  Court  will  not  disturb  the  ver- 
dict, unless  it  be  plainly  perverse. 

Fomierly,  however,  the  practice  was  very  different.  After  a  verdict  for 
the  plaintiff,  the  defendant  constantly  moved  in  arrest  of  judgment,  on  tlie 
ground  that  a  defamatory  meaning  was  not  shown  on  the  record  with  suf- 
ficient precision ;  or,  as  it  soon  came  to  be,  on  the  ground  that  it  was  just 
possible,  in  spite  of  the  record,  to  give  the  words  an  innocent  construction. 
For  it  was  said  to  be  a  maxim  that  words  were  to  be  taken  171  mitiori  sensn, 
whenever  there  were  two  senses  in  which  they  could  be  taken.  And  in 
these  early  times  the  Courts  thought  it  their  *  duty  to  discourage  ac-  *  96 
tions  of  slander.  They  would  therefore  give  an  innocent  meaning  to 
the  words  complained  of,  if  by  any  amount  of  legal  ingenuity  such  a  meaning 
could  be  put  upon  them  ;  and  would  altogether  disregard  the  plain  and  ob- 
vious signification  which  must  have  been  conveyed  to  bystanders  ignorant  of 

1  Hankinson  v.  Bilby,  16  M.  &  W.  442  ;  2  C.  &  K.  440. 

2  Baylis  v.  Lawrence,  11  A.  &  E.  920. 

3  Parmiter  v.  Coupland  and  another,  6  M.  &  W.  105  ;  9  L.  J,  Ex.  202  ;  4  Jur.  701. 

89 


*  96  CONSTETJCTION  AND   CERTAINTY. 

legal  technicalities.  Thus  where  a  maraed  woman  falsely  said,  "  You  have 
stolen  my  goods,"  and  the  jury  found  a  verdict  for  the  defendant,  the  Court 
entered  judgment  for  the  plaintiff  on  the  ground  that  a  married  woman 
could  have  no  goods  of  her  own,  and  that  therefore  the  words  conveyed  no 
charge  of  felony.''  Again,  where  the  words  complained  of  were,  "  He  hath 
delivered  false  evidence  and  untruths  in  his  answer  to  a  bill  in  Chancery," 
it  was  held  that  no  action  lay  ;  for  though  every  answer  to  a  bill  in  Chan- 
cery was  on  oath,  and  was  a  judicial  proceeding,  still  in  most  Chancery 
pleadings  "some  things  are  not  material  to  what  is  in  dispute  between 
the  parties,"  and  "  it  is  no  perjury,  although  such  things  are  not  truly 
answered  ! "  ^ 

But  in  the  days  of  Charles  II.,  the  Court  of  Common  Pleas  decided  in  a 
case  of  scandalum  magnatum  ^  that  "words  should  not  be  construed  either 
in  a  rigid  or  mild  sense,  but  according  to  the  general  and  natural  meaning, 
and  agreeable  to  the  common  understanding  of  all  men,"  And  this  decision 
soon  became  law.*  In  1722,  Fortescue,  J.,  declared  :  ^  —  "  The  maxim  for 
expounding  words  in  mitiori  sensu,  has  for  a  great  while  been  exploded, 
near  fifty  or  sixty  years."  In  Peake  v.  Oldham,^  Lord  Mansfield  com- 
mented severely  on  the  constant  practice  of  moving  in  arrest  of  judgment 
after  verdict  found  :  —  "  What  ]  After  verdict,  shaU  the  Court  be  guessing 
and  inventing  a  mode  in  which  it  might  be  barely  possible  for  these  words 
to  have  been  spoken  by  the  defendant,  without  meaning  to  charge  the 

*  97     plaintiff  with  being  guilty  of  murder  ]     Certainly  not.    Where  *  it 

is  clear  that  words  are  defectively  laid,  a  verdict  wiU  not  cure  them. 
But  where,  from  their  general  import,  they  appear  to  have  been  spoken  with 
a  view  to  defame  a  party,  the  Court  ought  not  to  be  industrious  in  putting 
a  construction  upon  them,  different  from  what  they  bear  in  the  common 
acceptation  and  meaning  of  them."  And  his  Lordship  quoted  a  dictum  of 
Parker,  C.J.,'  to  the  same  effect.  So  in  Harrison  v.  Thornborough,^  the 
Court  says  :  —  "  The  rule  that  has  now  prevailed  is  that  words  are  to  be 
taken  in  that  sense  that  is  most  natural  and  obvious,  and  in  Avhich  those  to 
whom  they  are  spoken  wiU  be  sure  to  understand  them."  ^ 

1  Anon.  Pasch.  11  Jac.  I.  ;  1  KoU.  Abr.  746  ;  now  overruled  by  Stamp  and  wife  v. 
White  and  wife,  Cro.  Jac.  600. 

2  Mitchell  V.  Brown,  3  Inst.  167  ;  1  Roll.  Abr.  70.  For  further  instances  of  such 
refinements,  see  Peake  v.  Pollard,  Cro.  Eliz.  214  ;  Cox  v.  Humphrey,  ib.  889  ;  and 
Holland  v.  Stoner,  Cro.  Jac.  315. 

3  Lord  Townshend  v.  Dr.  Hughes,  2  Mod.  159. 

4  See  Somers  v.  House,  Holt.  39  ;  and  Burges  v.  Bracher,  8  Mod.  238. 

5  In  Button  v.  Hayward  et  ux.,  8  Mod.  24.  6  Cowper,  277,  8. 
7  In  "Ward  v.  Reynolds,  Pasch.  12  Anne  B.  R.                         8  lo  Mod.  197. 

9  See  also  the  remarks  of  De  Grey,  C.J.,  in  R.  v.  Home,  2  Cowp.  682-689  ;  of 
Buller,  J.,  in  R.  v.  Watson  and  others,  2  T.  R.  206  ;  and  the  judgments  in  Woolnoth 
V.  Meadows,  5  East,  463  ;  2  Smith,  28. 

90 


NATUFvAL   CONSTRUCTION.  *  97 

And  such  is  now  the  law.  The  Courts  no  longer  strain  to  find  an  inno- 
cent meaning  for  Avords  primd  facie  defamatory,  neither  will  they  put  a 
forced  construction  on  words  which  may  fairly  be  deemed  harmless.  "  For- 
merly," says  Lord  Ellenborough,^  "  it  was  the  practice  to  say  that  words 
were  to  be  taken  in  the  more  lenient  sense  ;  but  that  doctrine  is  now  ex- 
ploded :  they  are  not  to  be  taken  in  the  more  lenient  or  more  severe  sense, 
but  in  the  sense  which  fairly  belongs  to  them." 

And,  again,  in  Eoberts  v.  Camden,^  the  same  learned  judge  says  :  — 
"  The  rule  which  once  prevailed  that  words  are  to  be  understood  in  viitiori 
sensu  has  been  long  ago  superseded ;  and  words  are  now  to  be  construed 
by  Courts,  as  they  always  ought  to  have  been,  in  the  plain  and  popular 
sense  in  which  the  rest  of  the  world  naturally  understand  them."  Xow, 
therefore,  the  only  question  for  the  judge  or  the  Court  is  whether  the  words 
are  capable  of  the  defamatory  meaning  attributed  to  them  ;  if  they  are,  then 
it  is  for  the  jury  to  decide  what  is  in  fact  the  true  construction. 

So  long  as  the  defendant's  words  are  not  absolutely  unintelli- 
gible, a  jury  will  judge  of  the  meaning  as  well  as  other  readers  or 
hearers.  All  perplexity  and  obscurity  will  disappear  under 
the  narrow  examination  which  the  *  words  will  receive  in  *  98 
a  court  of  law.  It  matters  not  whether  the  defamatory 
words  be  in  English  or  in  any  other  language  that  is  understood 
in  England,  whether  they  be  spelt  correctly  or  incorrectly, 
whether  the  phrase  be  grammatical  or  not,  whether  cant  or  slang 
terms  be  employed  or  the  most  elegant  and  refined  diction.^  The 
insinuation  may  be  indirect,  and  the  allusion  obscure  ;  it  may  be 
put  as  a  question  or  as  an  "  on  dit  "  ;  the  language  may  be  iron- 
ical, figurative,  or  allegorical,  (a)  Still,  if  there  be  a  meaning  in 
the  words  at  all,  the  Court  will  find  it  out,  even  though  it  be 
disguised  in  a  riddle  or  in  hieroglyphics.  In  all  such  cases  it  will 
be  a  question  for  the  jury  what  meaning  would  the  bystanders 
put  upon  the  words. 

And  before  answering  that  question  the  jury  should  well  weigh 
all  the  circumstances  of  the  case,  the  occasion  of  speaking,  the 
relationship  between  the  parties,  &c.  Especially  they  should  con- 
sider the  words  as  a  whole,  not  dwelling  on  isolated  passages, 
but  giving  its  proper  weight  to  every  part.     The  sting  of  a  libel 

1  In  2  Camp.  403.  2  9  East,  95. 

8  R.  V.  Edgar,  2  Sess.  Cas.  29  ;  5  Bac,  Abr.  199. 

(a)  Soiithwick  v.  Stevens,  10  Jolins.  443  ;  Borland  v.  Patterson,  23  "Wend.  422 ; 
Smith  V.  Stewart,  5  BaiT,  372. 

91 


*  98  CONSTRUCTION   AND   CERTAINTY. 

may  sometimes  be  contained  in  a  word  or  sentence  placed  as  a 
heading  to  it.  The  defendant  will  often  be  held  liable  merely  in 
consequence  of  such  prefix,  where,  without  it,  he  would  have  had 
a  perfect  answer  to  the  action.  So,  too,  a  word  added  to  the  end 
may  altogether  vary  the  sense  of  the  preceding  passage.  The 
defendant  is,  therefore,  entitled  to  have  the  whole  of  the  alleged 
libel  read  as  part  of  plaintiff's  case.-'  (a)  And  for  the  purpose  of 
showing  that  the  publication  is  no  libel,  the  defendant  in  his  turn 
may  give  in  evidence  other  passages  in  the  same  publication 
plainly  referring  to  the  subject  of  the  libel,  and  fairly  connected 
with  it,  in  order  to  prove  that  his  intention  was  not  such  as  was 
imputed    to    him,  and    that    the  expressions  in    dispute 

*  99      *  will  not  bear  the  construction  sought  to  be  given  them.^ 

But  according  to  Pollock,  C.B.,  in  Darby  v.  Ouseley,'^  it 
is  essential  that  such  other  passages  should  be  connected  with, 
construe,  modify,  control,  qualify,  or  explain  the  alleged  libellous 
statements,  and  be  entirely  relevant  to  them. 

So,  too,  with  a  slander  ;  very  often  the  words  immediately  pre- 
ceding or  following  may  much  modify  those  relied  on  by  the 
plaintiff.^  (5)  Evidence  may  even  be  given  of  other  libels  or 
slanders  published  hy  the  defendant  of  the  plaintiff,  when  the 
language  sued  on  is  ambiguous,  and  some  extrinsic  evidence  is 
necessary  to  explain  it ;  but  such  evidence  is  not  admissible 
where  the  meaning  of  the  words  is  clear  and  undisputed.^  (c) 
And  when  such  evidence  is  admitted,  the  jury  should  always 
be  cautioned  not  to  give  any  damages  in  respect  of  it.^ 

IllustratioTis. 

The  Observer  gave  a  correct  account  of  some  proceedings  in  the  Insolvent  Debtor's 
Court,  but  it  was  headed  "  Shameful  Conduct  of  an  Attorney."     The  rest  of  the  report 

1  Cooke  V.  Hughes,R.  &  M.  112. 

2  R.  V.  Lambert  and  Perry,  2  Camp.  400  ;   31  Howell  St.  Tr.  340. 

3  25  L.  J.  Ex.  229  ;  1  H.  &  N.  1  ;  2  Jur.  N.  S.  497. 

*  Bittridge's  Case,  4  Rep.  19;  Thomson  v.  Bernard,  1  Camp.  48. 

6  Stuart  V.  Lovell,  2  Stark,  93;  Pearce  v.  Omsb)',  1  M.  &  Rob.  455;  Symmons  v. 
Blake,  il.  477;  2  C.  M.  &  R,  416;  4  D.  P.  C.  263;  1  Gale,  182;  Traill  v.  Denham, 
Times  for  May  4th,  1880, 

6  Per  Tindal,  C.J.,  in  Pearson  v.  Lemaitre,  5  M.  &  Or.  720;  12  L.  J.  Q.  B.  253; 
7  Jur.  748;  6  Scott,  N.  R.  607. 

(a)  Van  Vactori).  Walkup,  46  Cal.  124.  (c)  See  ante,  p.  88,  note  (bottom  pag- 

\l)  See  Abrams  v.  Smith,  8  Blackf.453.     ing). 

92 


IXXUEXDO.  *  99 

was  held  privileged ;  but  the  plaintiff  recovered  damages  for  the  heading.  Clement  v. 
Lewis,  3  Br.  &  B.  297;  7  Moore,  200;  3  B.  &  Aid.  702.  And  see  Mountney  v.  Watton, 
2  B.  &  Ad.  673;  Bishop  v.  Latimer,  4  L.  T.  775;  Boydell  v.  Jones,  4  M.  &  ^Y.  446; 
7  D.  P.  C.  210;  1  H.  &  H.  408;  Harvey  v.  French,  1  Cr.  &  M.  11;  2  M.  &  Scott,  591; 
2  TjT.  585;  Lewis  v.  Levy,  E.  B.  &  E.  537;  27  L.  J.  Q.  B.  282;  4  Jur.  N.  S.  970; 
Street  v.  Licensed  Victuallers'  Society,  22  W.  E.  553;  Stanley  v.  Webb,  4  Sandf. 
(N.  Y.)  21. 

*  An  action  was  brought  for  an  alleged  libel,  published  in  the  True  Sun  *  IQO 
newspaper:  —  "  Riot  at  Preston.  —  From  the  Liverpool  Courier.  —  It  appears 
that  Hunt  pointed  out  Counsellor  Seager  to  the  mob,  and  said,  *  There  is  one  of  the 
black  sheep."  The  mob  fell  upon  him  and  murdered  him.  In  the  affray  Hunt  had 
his  nose  cut  off.  The  coroner's  inquest  have  brought  in  a  verdict  of  wilful  murder 
against  Hunt,  who  is  committed  to  gaol.  —  Fudge."  The  plaintifiF  contended  that  the 
word  "Fudge"  was  merely  introduced  with  reference  to  the  future,  in  order  that  the 
defendants  might  afterwards,  if  the  paragraph  were  complained  of,  be  able  to  refer  to 
it,  as  showing  that  they  intended  to  discredit  the  statement.  Lord  Lyndhurst,  C.B., 
told  the  jury  that  the  question  was,  with  what  motive  the  publication  was  made.  It 
was  not  disputed  that  if  the  paragraph,  which  was  copied  from  another  paper,  stood 
without  the  word  "  Fudge,"  it  would  be  a  libel.  If  they  were  of  opinion  that  the  ob- 
ject of  the  paragraph  was  to  vindicate  the  plaintiff's  character  from  an  unfounded 
charge,  the  action  could  not  be  maintained;  but  if  the  word  "Fudge"  was  only  added 
for  the  purpose  of  making  an  argument  at  a  future  day,  then  it  would  not  take  away 
the  effect  of  the  libel.  Verdict  for  the  plaintiff.  Damages,  one  farthing.  Hunt  v. 
Algar,  6  C.  &  P.  245. 

Of  the  Innuendo. 

In  arriving  at  the  meaning  of  the  defendant's  words,  the  Court 
and  jury  are  often  materially  assisted  by  an  averment  in  the  plain- 
tiff's Statement  of  Claim,  called  an  iyinuendo.  This  is  a  state- 
ment by  the  plaintiff  of  the  construction  which  he  puts  upon  the 
words  himself,  and  which  he  will  endeavor  to  induce  the  jury  to 
adopt  at  the  trial.  Where  a  defamatory  meaning  is  apparent  on 
the  face  of  the  libel  itself,  no  innuendo  is  necessary :  though  even 
there  the  pleader  occasionally  inserts  one  to  heighten  the  effect  of 
the  words.  But  where  the  words  primd  facie  are  not  actionable, 
an  innuendo  is  essential  to  the  action.  It  is  necessary  to  bring 
out  the  latent  injurious  meaning  of  the  defendant's  words  ;  and 
such  innuendo  must  distinctly  aver  that  the  words  bear  a  specific 
actionable  meaning.^  («) 

1  Cox  V.  Cooper,  12  W.  E.  75;  9  L.  T.  329. 

{a)  What  the  author  here  says  about  of  facts  going  to  make  language  defaraa- 

the  office  of  an  innuendo  belongs  to  what  tory  which  in  itself  is  either  innocent  or 

formerly  in  England  was  and  still  quite  in  its  ordinary  sense  not  clearly  defama- 

generally  in  this  country  is  called  the  col-  tory;  while  the  innuendo  serves  to  remove 

loquium;  a  thing  quite  distinct  from  the  an  obscuritj',  as  by  pointing  the  application 

innuendo.     The  colloquium  is  a  statement  of  language  shown  by  the  colloquium,  to  be 

93 


*100 


CONSTRUCTION   AND   CERTAINTY. 


It   is   the   office 
meaning  wl 

*  101    *  bow  tliey 
also  to  sliQ 

that  is  not  clearfctJ'iT 


of  an    innuendo    to    define   the    defamator}' 

plaintiff  sets  on  the  words ;  to  show 

have  that  defamatory  meaning ;  and 

fbw  they  relate  to  the  plaintiff,  whenever 

the  face  of  them.     But  an  innuendo  may  not 


defamatory  or  (^/amatory  in  its  own  terms. 
Ai^art^rom  ^!|g/tute  the  two  are  never  to  be 
confounclffi/  that  is,  unless  statute  author- 
ize, 1lJ|[^short  innuendo  cannot  be  made  to 
servefftne  purpose  of  a  colloquium.  In 
other Vords  under  the  mere  term  ' '  mean- 
ing "  or  its  equivalent,  language  which  is 
not  ex  vi  termini  defamatory  cannot  be  al- 
leged to  be  defamatory  or  to  mean  something 
that  iit  does  not  of  itself  naturally  mean  ; 
or  again  in  technical  phrase  the  meaning 
of  words  cannot  be  enlarged  by  mere  innu- 
endo. Nolan  V.  Traber,  49  Md.  460;  Pe- 
terson V.  Sentman,  37  Md.  140;  Gabe  v. 
McGinnis,  68  Ind.  538;  Hays  v.  Mitchell, 
7  Blackf.  117;  Ward  v.  Colyhan,  30  Ind. 
395;  Hart  v.  Coy,  40  Ind.  553;  De  Armond 
V.  Armstrong,  37  Ind.  35;  Schurickr.  KoU- 
man,  50  Ind.  336;  Brown  u.  Finer,  6  Bush, 
518;  Commonwealth  v.  Keenan,  67  Penn. 
203  ;  Lukehart  v.  Byerly,  53  Penn.  St. 
418  ;  Stitzell  v.  Reynolds,  59  Penn.  St. 
488  ;  Holton  v.  Muzzy,  30  Vt.  865;  Har- 
ris V.  Rurley,  8  N.  H.  256;  Sanderson  v. 
Caldwell,  4.5  N.  Y.  S98;  Cottrill  v.  Cramer, 
43  Wis.  242;  Weil  v.  Schmidt,  28  Wis. 
137;  Clarke  v.  Fitch,  41  Cal.  363;  Tappan 
V.  Wilson,  7  Ohio,  190;  Parke  v.  Pied- 
mont Ins.  Co.,  51  Ga.  510. 

The  reason  of  this  is  not  far  to  seek. 
According  to  common  law  principles  of 
■pleading  the  declaration  should  state  facts 
and  never  inferences  (unless  direct  and  ob- 
vious) without  the  facts  upon  which  they 
are  based.  A  contrary  doctrine  would  per- 
mit the  plaintiff  to  go  to  the  jury,  escaping 
the  rightful  result  of  a  demurrer,  when  he 
tad  no  case;  he  would  only  have  to  draw 
his  own  inferences.  However  recent 
changes  in  the  law  of  pleading,  following 
similar  ones  in  England,  have  in  many 
States  gone  nearly  or  quite  the  length  of 
permitting  the  plaintiff  to  do  tliis,  in  al- 
lowing him  directly  to  allege  that  words 
apparently  not  defamatory  were  used  in  a 
defamatory  sense,  thus  doing  away  with 
the  necessity  of  a  colloquium  or  modifying 

94 


its  character.  Clarke  v.  Jones,  49  Iowa, 
474;  Kinyon  v.  Palmer,  18  Iowa,  377; 
Hand  v.  Win  ton,  9  Vroom,  122.  See  Che- 
nery  v.  Goodrich,  98  Mass.  224,  228;  Rid- 
dell  V.  Thayer,  127  Mass.  487.  And  in 
some  States,  as  in  Massachusetts,  innuen- 
does are  no  longer  necessary.  See  the  two 
cases  just  cited.  But  it  is  apprehended 
that  in  most  of  the  States  it  is  still  re([uired 
of  the  plaintiff  to  allege  facts  sufficient  to 
divert  the  meaning  of  language  not  natu- 
rally defamatory.  Chenery  v.  Goodrich,  and 
Eiddell  v.  Thayer,  supra;  Chace  v.  Sher- 
man, 119  Mass.  387;  Brettun  v.  Anthony, 
103  Mass.  37;  York  v.  Johnson,  116  Mass. 
482;  Emmerson  v.  Marvel,  55  Ind.  265; 
Hart  V.  Coy,  40  Ind.  553;  Stewart  v.  Wil- 
son, 23  Minn.  449;  Smith  y.Coe,  22  Minn. 
276;  Kinney  v.  Nash,  3  Comst.  177,  162; 
Cary  v.  Allen,  39  Wis.  481.  But  iu.-i- 
much  as  the  purpose  of  the  colloquium  is 
to  divert  the  meaning  of  language  not  ap- 
parently defamatory,  and  that  of  the  innu- 
endo to  remove  an  obscurity  upon  the  face  of 
the  language,  it  follows  that  even  at  com- 
mon law  it  may  be  unnecessary  to  make 
use  of  either  in  certain  cases.  This  will  be 
ti'ue  where  the  language  is  of  itself  defam- 
atory and  names  the  plaintiff.  See  Lang- 
ton  V.  Hagerty,  35  Wis.  150  ;  Lewis  v. 
Hudson,  44  Ga.  568;  Gabe  v.  McGinnis, 
68  Ind.  538;  Rodebaugh  v.  Hollingsworth, 
6  Ind.  339.  In  such  a  case  the  use  of  col- 
loquium or  innuendo  is  mere  surplusage. 
lb.  But  when  either  is  needed  the  plain- 
tiff must  abide  by  his  pleading,  at  least  in 
regard  to  the  innuendo,  Strader  v.  Sny- 
der, 67  111.  404.  Again  if  when  an  innu- 
endo being  necessary  is  pleaded  there  is 
anything  on  the  face  of  the  language  to 
give  it  color  the  case  must  go  to  the  jury. 
Commonwealth  v.  Keenan,  67  Penn.  St. 
203.  And  if  some  of  the  innuendoes  ex- 
tend the  meaning  too  far  while  others  are 
proper  the  latter  only  are  to  be  regarded. 
lb. 


INNUENDO.  *  101 

introduce  new  matter,  or  enlarge  the  natural  meaning  of  words. 
It  must  not  put  upon  the  defendant'S»^ofH§  a  construction  which 
they  will  not  bear.  If  the  words  are  ii^apjible  of  the  meaning 
ascribed  to  them  by  the  innuendo,  and  are  pf'imd  facie  not  action- 
able, the  declaration  will  be  held  bad  on  demviflW' ;  or  if  there  be 
no  demurrer,  the  judge  at  the  trial  will  stop/the''bise.  If,  how- 
ever, the  Court  or  the  judge  think  the  words  are  cQ/^ahle  of  the 
meaning  ascribed  to  them,  however  improbable  it  ma^f?  appear 
that  they  were  in  fact  so  understood,  then  it  must  be  leit  i(^  the 
jury  to  say  whether  such  is  or  is  not  their  true  meaning.^     '  ) 

An  innuendo  now  requires  no  prefator}^  averment  to  support 
it.2  The  libel  or  slander  sued  on  must  of  course  be  set  out  ver- 
batim in  the  Statement  of  Claim.^  The  innuendo  usually  follows 
it  immediatel}^  And  such  a  declaration  is  to  be  considered  as 
two  counts  under  the  old  system  of  pleading,  one  with  an  innu- 
endo and  one  without.  And  if  the  plaintiff  can  show  a  good 
cause  of  action,  either  with  or  without  the  alleged  meaning,  his 
statement  of  claim  will  be  sufficient.^ 

The  defendant  is  in  no  way  embarrassed  by  the  presence  of  the 
innuendo  in  the  Statement  of  Claim  :  in  fact  it  is  to  him  an  ad- 
vantage. He  can  either  deny  that  he  ever  spoke  the  words,  or 
he  can  admit  that  he  spoke  them,  but  deny  that  they  conveyed 
that  meaning.  He  can  also  assert  that  the  words  he  spoke 
were  true,  either  *with  or  without  the  alleged  meaning.  *  102 
It  will  then  be  for  the  jury  to  say  whether  the  plaintiff's 
construction  of  the  words  is  borne  out  by  the  evidence.  If  not, 
the  plaintiff  may  fall  back  upon  the  words  themselves,  and  urge 
that,  taken  in  their  natural  and  obvious  signification,  they  are 
actionable  ^:>er  se  without  the  alleged  meaning,  and  that  thei-efore 
his  unproved  innuendo  may  be  rejected  as  surplusage.^  But  he 
cannot  at  the  close  of  the  trial  resort  to  another  construction 
of  the  words  different  both  from  their  prima  facie  meaning 
and  from  that  pointed  by  the  innuendo ;  if  he  win  a  verdict  in 

1  Hunt  V.  Goodlake,  43  L.  J.  C.  P.  54;  29  L.  T.  472;  Broome  v.  Gosden,  1  C.  B. 
728. 

2  Common  Law  Procedure  Act,  1852,  s.  61. 

8  Harris  v.  Wane,  4  C,  P.  D.  125  ;  48  L.  J.  C.  P.  310  ;  27  W.  R.  461  ;  40  L.  T. 
429. 

*  Per  Blackburn,  J.,  in  Watkin  v.  Hall,  L.  R.  3  Q.  B.  402;  37  L.  J,  Q.  B.  125; 
16  W.  R.  857;  18  L.  T.  561. 

6  Harvey  v.  French,  1  Cr.  &  M.  11;  2  M.  &  Scott,  591;  2  Tyrw.  585. 

95 


*  102  CONSTRUCTION  AND   CERTAINTY. 

this  way,    the  Court  will  grant  a  new  trial  on  the  ground  of 
surprise.^ 

The  plaintiff  cannot  in  the  middle  of  the  case  start  a  fresh  in- 
nuendo not  on  the  record  ;  he  must  abide  by  the  construction  he 
put  on  the  words  in  the  Statement  of  Claim,  or  else  rely  on  their 
natural  and  obvious  import.  If  the  jury  negative  his  innuendo, 
and  the  words  are  not  actionable  in  their  natural  and  primary 
sense,  judgment  must  be  for  the  defendant.^ 

Illustrations. 

"  He  hath  forsworn  himself."  These  words  are  not  in  themselves  a  sufficient  im- 
putation of  perjury,  because  he  is  not  said  to  have  sworn  falsely  while  giving  evidence 
in  Court.  But  an  innuendo  "  before  the  justice  of  assize  "  is  clearly  bad;  for  it  is  not 
an  exi)lanation  of  defendant's  words,  but  an  addition  to  them.  Anon.  1  Eoll.  Abr.  82; 
Holt  V.  Scholefield,  6  T.  R.  691. 

A  libel  alleged  that  a  gentleman  was  on  a  certain  night  hocussed  and  robbed  of  £40, 
in  the  plaintiffs  public-house.  An  innuendo  "  meaning  thereby  that  the  said  public- 
house  was  the  resort  of,  and  frequented  by,  felons,  thieves,  and  depraved  and  bad 
characters,"  after  verdict  for  the  defendant,  was  held  too  wide.  Broome  v.  Gosden,  1 
C.  B.  728;  Clarke's  Case  de  Dorchester  (1619),  2  Rolle's  Eep.  136. 

*  103  *  "  There  is  strong  reason  for  believing  that  a  considerable  sum  of  money 

was  transferred  by  power  of  attorney  obtained  by  undue  influence  ;  "  an  innu- 
endo "  meaning  as  a  fact  that  the  plaintiff  had  by  undue  influence  procured  the  money 
to  be  transferred,"  was  held  not  too  wide  ;  for  such  would  be  the  meaning  conveyed  to 
readers  by  the  defendant's  insuiuation.  Turner  v.  Meryweather,  7  C.  B.  251  ;  18  L. 
J.  C.  P.  155  ;  13  Jur.  683  ;  19  L.  J.  C.  P.  10  ;  Williams  v.  Gardiner,  1  M.  k  W.  245; 
1  TjTnv.  &  Gr.  578. 

Libel  complained  of :  —  "He  has  become  so  inflated  with  self-importance  by  the  few 
hundreds  made  in  my  service  —  God  only  knows  whether  honestly  or  otherwise  — 
that,"  &c.  Innuendo,  "  meaning  thereby  to  insinuate  that  the  plaintiff  had  conducted 
himself  in  a  dishonest  manner  in  the  service  of  the  defendant."  The  Court  refused  to 
disturb  a  verdict  for  the  plaintiff.     Clegg  v.  Laffer,  3  Moore  &  Sc.  727  ;  10  Bing.  250. 

The  defendant  said,  "  Master  Barham  did  burn  my  barn  with  his  own  hands,  and 
none  but  he."  At  that  date  it  was  not  felony  to  burn  a  barn,  unless  it  were  either  full 
of  corn  or  parcel  of  a  mansion-house.  An  innuendo,  "a  barn  full  of  corn,"  was  held 
too  wide.  "That  is  not,"  says  De  Grey,  C.J.,  commenting  on  this  case  in  Cowp.  684, 
"an  explanation  of  what  was  said  before,  but  an  addition  to  it.  But  if  in  the  intro- 
duction it  had  been  aveiTed,  that  the  defendant  had  a  barn  full  of  com,  and  that  in  a 
discourse  about  the  bam,  the  defendant  had  spoken  the  words  charged  in  the  libel  of 
the  plaintiff ;  an  innuendo  of  its  being  the  barn  full  of  com  would  have  been  good. 
For  by  coupling  the  innuendo  in  the  libel  with  the  introductory  averment,  '  his  bam 
full  of  corn,'  it  would  have  made  it  compleat."    Barbara's  Case,  4  Rep.  20  ;  Yelv.  21. 

1  Hunter  v.  Sharpe,  4  F.  &  F.  983;  15  L.  T.  421;  Ruel  v.  Tatnell,  29  W.  R.  172; 
43  L.  T.  507. 

2  Brembridge  v.  Latimer,  12  W.  R.  878;  10  L.  T.  816;  Maguire  v.  Knox,  5  Ir.  C. 
L.  R.  40k 

96 


INNUENDO.  *  103 

See  Capital  and  Counties  Bank  v.  Henty  and  Sons,  28  W.  R.  490  ;  5  C.  P.  D.  5U  ;  49 
L.  J.  C.  P.  830  ;  42  L.  T.  314  ;  (C.  A.)  28  W.  R.  851. 

Words  complained  of:  —  "  He  is  a  regular  prover  under  bankraptcies."  An  innu- 
endo, "the  defendant  meaning  thereby  that  the  plaintiff  had  j)roved  and  was  in  the 
habit  of  proving  fictitious  debts  against  the  estates  of  bankrupts,  with  the  knowledge 
that  such  debts  were  fictitious,"  is  now  all  that  is  necessary.  C.  L.  P.  Act,  1852, 
Sched.  B.,  form  33. 

Not  so  formerly.  Angle  v.  Alexander,  7  Bing.  119;  1  Cr.  &  J.  143;  1  Tyrw.  9;  4 
M.  &  P.  870,  ante,  p.  78. 

The  alleged  libel  was  as  follows: —  "  Notice,  — any  person  giving  information  where 
any  property  may  be  found  belonging  to  H.  G.  (meaning  the  plaintiff),  a  prisoner  in 
the  King's  Bench  prison,  but  residing  within  the  rules  thereof,  shall  receive  five  per 
cent,  upon  the  goods  recovered,  for  their  trouble,  by  applying  at  Mr.  L.,"  &c.  Innu- 
endo, that  the  plaintiff  had  been  and  was  guilty  of  concealing  his  property  with  a 
fraudulent  and  unlawful  intention.  Held,  on  general  demurrer,  that  the 
innuendo,  unsupported  *by  any  prefatory  averment,  was  too  large;  and  that  *  104 
the  words,  in  themselves,  were  not  actionable.  Gompertz  v.  Levy,  9  A.  &  E. 
282;  2  Jur.  1013;  1  P.  &  D.  214;  1  W.  W.  &  H.  728;  AVheeler  v.  Haynes,  9  A.  &  E. 
286,  note;  1  W.  W.  &  H.  645;  1  P.  &  D.  55;  Capel  and  others  v.  Jones,  4  C.  B.  259; 
11  Jur.  396;  Day  v.  Robinson,  1  A.  &  E.  554;  4  N.  &  M.  884;  Adams  v.  Meredew,  2 
Y.  &J.  417;  3  Y.  &  J.  219. 

But  all  these  cases  are  overraled  by  the  C.  L.  P.  Act,  1852,  s.  61,  as  interpreted  in 
Hemmings  v.  Gassou,  E.  B.  &  E.  346;  27  L.  J.  Q.  B.  252;  4  Jur.  N.  S.  834. 

An  information  was  filed  against  a  Nonconformist  minister  for  a  libel  upon  "the 
bishops"  contained  in  a  book,  called  "  A  Paraphrase  upon  the  New  Testament."  An 
innuendo,  "the  bishops  of  England"  was  held  to  be  allowable,  if  from  the  nature  of 
the  libel  this  was  clearly  what  was  meant.     R.  v.  Baxter  (1685),  3  Mod.  69. 

The  libel  accused  a  gentleman  of  saying,  "  He  could  see  no  probability  of  the  war's 
ending  with  France,  until  the  little  gentleman  on  the  other  side  of  the  water  was  re- 
stored to  his  rights."  Innuendo,  "the  Prince  of  "Wales,"  allowed  to  be  good;  in  fact 
the  Court  thought  the  meaning  was  clear  without  any  innuendo.  Anon.  (1707)  11 
Mod.  99;  R.  v.  Matthews  (1719),  15  How.  St.  Tr.  1323. 

Libel:  —  "  The  mismanagements  of  the  navy  have  been  a  greater  tax  upon  the  mer- 
chants than  the  duties  raised  by  government."  An  innuendo,  "the  royal  navy  of  this 
kingdom,"  held  not  too  wide.  R.  v.  Tutchin  (1704),  14  How.  St.  Tr.  1095;  5  St.  Tr. 
527;  2  Ld.  Raym.  1061;  Salk.  50;  6  Mod.  268;  R.  v.  Home  (1777),  Cowp.  672;  11 
St.  Tr.  264;  20  How.  St.  Tr.  651. 

Words  may  be  :  — 

(1)  obviously  defamatory ; 

(2)  ambiguous :  that  is,  words  which,  though  prima  facie 
defamatory,  are  still  on  the  face  of  them  susceptible  of 
an  innocent  meaning  ; 

(3)  neutral ;  i.e.,  words  which  are  meaningless  till  some  ex- 
planation is  given ;  such  are  slang  expressions,  words  in 
a  foreign  language,  words  used  in  some  special,  local, 
technical,  or  customary  sense  ; 

*  (4)  lorimd   facie    innocent ;    but    capable   of  a   de-    *  105 

famatoiy  meaning  ; 

7  97 


*  105  CONSTETJCTION   AND   CERTAINTY. 

(5)  obviously  innocent ;  words  which  cayinot  be  construed 
so  as  to  convey  any  imputation  on  the  plaintiff. 
To  these  different  classes  of  words  special  rules  of  pleading, 
evidence,  and  construction  apply. 

1.    Words  obviously  defamatory. 

Here  no  innuendo  is  necessary.  No  parol  evidence  is  admissi- 
ble at  the  trial  to  explain  the  meaning  of  the  Avords.  The  judge 
will  direct  the  jury  as  a  matter  of  law  that  the  words  are  action- 
able, and  that  they  must  find  for  the  plaintiff.  The  defendant 
cannot  be  heard  to  say  that  he  did  not  intend  to  injure  the  plain- 
tiff's reputation,  if  he  has  in  fact  done  so.  Should  the  jury  per- 
versely refuse  to  follow  the  judge's  direction,  a  new  trial  will  be 
granted.! 

But  the  defendant  may  plead  circumstances  which  made  it  clear  at  the 
time  he  spoke  or  wrote  that  the  words  were  not  used  in  their  ordinary  sig- 
nification. He  may  thus  take  the  words  out  of  this  class  into  class  2, 
words  primd  facie  defamatory.  It  will  then  be  a  question  for  the  jury 
how  the  bystanders  understood  the  words.  But  such  question  only  arises 
where  the  words  are  susceptible  of  the  innocent  meaning  which  the  de- 
fendant seeks  to  place  on  them,  and  where  also  the  circumstances  which 
qualify  the  injurious  words  were  known  to  the  bystanders  at  the  time. 

Illustrations. 

It  is  libellous,  without  any  innuendo,  to  write  and  publish  that  a  newspaper  has  a 
separate  page  devoted  to  the  advertisements  of  usurers  and  quack  doctors,  and  that  the 
editor  takes  respectable  advertisements  at  a  cheaper  rate  if  the  advertisers  will  consent 
to  their  appearing  in  that  page.  The  Court,  however,  expressed  surprise  at  the  absence 
of  some  such  innuendo  as  "meaning  thereby  that  the  plaintiffs  paper  was  an  ill-con- 
ducted and  low-class  journal."  Russell  and  another  v.  Webster,  23  W.  E.  59. 
*  106  *  Where  a  libel  called  the  plaintiff  a  "truckmaster,"  and  the  defendant 

justified;  but  no  evidence  was  given  at  the  trial  as  to  the  meaning  of  the  word; 
the  Court  held  after  some  hesitation  that,  though  the  word  was  not  to  be  found  in  any 
English  dictionary,  its  meaning  was  sufficiently  clear  to  sustain  the  action,  there  being 
a  statute  called  "The  Truck  Act."  Homer  v.  Taunton,  5  H.  &  N.  661;  29  L.  J.  Ex. 
31S;  8  W.  R.  499;  2  L.  T.  512. 

To  write  and  publish  that  a  certain  woman  is  a  prostitute,  and  that  "she  is,  I  under- 
stand, under  the  patronage  or  protection  of"  the  plaintiff,  was  held  actionable  in  the 
Court  of  Appeals  in  New  York,  although  there  was  no  innuendo  averring  that  she  was 
under  the  plaintiffs  protection  for  immoral  purposes.     More  v.  Bennett  (1872),  48  N. 

1  Levi  V.  Milne,  4  Bing.  195;  12  Moore,  418. 

98 


WORDS   PRIMA   FACIE   DEFAMATORY.  *  106 

Y.  R.  (3  Sickel),  472;  reversing  the  judgment  of  the  Supreme  Court  below,  reported,  33 
How.  Pr.  R.  180;  48  Barbour,  N.  Y.  229. 

It  is  libellous  to  write  and  publish  these  words: — "Threatening  letters.  The 
Middlesex  grand  jury  have  returned  a  true  bill  against  a  gentleman  of  some  prop- 
erty named  French."  And  no  innuendo  is  necessary  to  explain  the  meaning  of  the 
words;  for  they  can  only  import  that  the  grand  jury  had  found  a  true  bill  against 
French  for  the  misdemeanor  of  sending  threatening  letters.  Harvey  v.  French,  1  Cr.  & 
M.  11;  2  M.  &  Scott,  591;  2  Tyrw.  585. 

Allegorical  terms  of  well-known  import  are  libellous  per  se,  without  innuendoes  to 
explain  their  meaning;  (a)  e.g.  imputing  to  a  person  the  qualities  of  the  "  frozen  snake," 
or  calling  him  "Judas."  Hoare  v.  Silverlock  (No.  1,  1848),  12  Q.  B.  624;  17  L.  J. 
Q.  B.  306;  12  Jur.  695. 

Words  complained  of: — "Thou  art  a  thief:"  no  innuendo  at  all  is  necessar}',  as 
larceny  is  clearly  imputed.  Blumley  v.  Rose,  1  Roll.  Abr.  73;  Slowman  v.  Button,  10 
Bing.  402. 

If  the  words  can  be  understood  as  imputing  an  indictable  offence,  no  innuendo  is 
necessary.  And,  if  it  were,  an  innuendo,  "  meaning  thereby  that  the  plaintiff  had  been 
guilty  of  an  indictable  offence,"  is  sufficient  without  specifying  what  particular  indict- 
able ofience  is  meant.  Kinnahan  v.  McCullagh,  Ir.  R.  11  C.  L.  1;  Saunders  v.  Ed- 
wards, Sid.  95;  Francis  v.  Roose,  3  M.  &  W.  191;  1  H.  &  H.  36. 

To  say,  "He  robbed  John  White,"  is  2>rima  facie  clearly  actionable.  But  the  de- 
fendant may  show,  if  he  can,  that  that  is  not  the  sense  in  which  they  were  fiiirly  under- 
stood by  bystanders  who  listened  to  the  whole  conversation,  though  previously 
unacquainted  with  the  matter  to  which  the  words  sued  on  relate.  Tomlinson  v.  Brit- 
tlebank,  4  B.  &  Adol.  630;  1  Nev.  &  Man.  455;  Hankinson  v.  Bilby,  16  M.  &  W.  442; 
2  C.  &  K.  440;  Martin  v.  Loci,  2  F.  &  F.  654. 

*  2.    Words  prima  facie  defamatory.  *  107 

Here,  too,  no  innuendo  is  necessary,  and  no  parol  evi- 
dence is  admissible  at  the  trial  to  explain  the  meaning  of  the 
words.     The  judge  will  direct  the  jury  that  the  words  are  j^rimd 
facie  actionable. 

But  the  defendant  may  plead  circumstances  which  made  it 
clear  at  the  time  that  the  words  were  not  used  by  him  in  their 
ordinary  signification.  He  may  plead  that  the  words  were  ut- 
tered merely  in  a  joke,  and  were  so  understood  by  all  who  heard 
them  ;  or  that  the  words  were  part  of  a  longer  conversation,  the 
rest  of  which  limits  and  explains  the  words  sued  on  ;  or  any 
other  facts  which  tend  to  show  that  they  were  uttered  with  an 
innocent  meaning,  and  so  understood  by  the  bystanders.  And  if 
such  a  defence  be  pleaded,  parol  evidence  may  be  given  of  the 
facts  alleged.  And  then  it  becomes  a  question  for  the  jury 
whether  the  facts  as  pleaded  are  substantially  proved,  and  whether 

(a)  See  Bailey  v.  Kalamazoo  Pub.  Co.,  40  Mich.  256;  Clarke  v.  Fitch,  41  Cal. 
472. 

99 


*  107  COKSTEUCTION  AXD   CEETAINTY. 

the}^  do  put  on  the  words  a  color  different  from  what  they  would 
primd  facie  bear.  It  is  generally  difficult,  however,  to  induce 
the  jury  to  adopt  the  defendant's  harmless  view  of  his  own  lan- 
guage. 

But  the  defendant  may  not  plead  or  give  in  evidence  any  facts 
which  were  not  known  to  the  bystanders  at  the  time  the  words 
were  uttered.  The  defendant's  secret  intent  in  uttering  the 
words  is  immaterial.^ 

The  defendant  is  allowed  thus  to  give  evidence  of  all  "  the  surrounding 
circumstances,"  in  order  to  place  the  jury  so  far  as  possible  in  the  position 
of  bystanders,  that  they  may  judge  how  the  words  would  be  understood  on 
the  particular  occasion.  But  though  evidence  of  such  extrinsic  facts  is 
admitted,  parol  evidence  merely  to  explain  away  the  words  used,  to  show 
that  they  did  not  for  once  bear  their  ordinary  signification,  is  inad- 

*  108    missible.     A  witness  cannot  be  called  to  say  "  I  should  not  *  have 

understood  defendant  to  make  any  imputation  whatever  on  the 
plaintiff."  The  jury  know  what  ordinary  English  means,  and  need  no 
witness  to  inform  them. 

The  leading  case  on  this  point  is  one  cited  in  the  Lord  Cromwell's  Case.** 
(At  least,  it  appears  to  be  a  decided  case,  not  a  mere  illustration.)  "  If  a 
man  brings  an  action  on  the  case  for  calling  the  plaintiff  murderer,  the 
defendant  wiU  say,  that  he  was  talking  with  the  plaintiff  concerning  un- 
lawful hunting,  and  the  plaintiff  confessed  that  he  killed  several  hares  with 
certain  engines ;  to  which  the  defendant  answered  and  said,  "  Thou  art  a 

murderer  "  (innuendo  the  killing  of  the  said  hares) Resolved  by 

the  whole  Court,  that  the  justification  was  good.  For  in  case  of  slander 
by  words,  the  sense  of  the  words  ought  to  be  taken,  and  tlie  sense  of  them 
appears  by  the  cause  and  occasion  of  speaking  of  them  ;  for  seiisus  verborum 
ex  causa  dicendi  accipiendus  est  et  sermones  semper  accipiendi  sunt  secundum 

subjectam And  it  was  said,  God  forbid  that  a  man's  words  should  be 

by  such  strict  and  grammatical  construction  taken  by  parcels  against  the 
manifest  intent  of  the  party  upon  consideration  of  all  the  words,  Avhich 
import  the  true  cause  and  occasion  which  manifest  the  true  sense  of  them  ; 
quia  quce  ad  uman  finem  loquida  sunt,  non  dehent  ad  alium  detorqueri  : 
and,  therefore,  in  the  said  case  of  murder,  the  Court  held  the  justification 
good  ;  and  that  the  defendant  should  never  be  put  to  the  general  issue, 
when  he  confesses  the  words  and  justifies  them,  or  confesses  the  words, 
and  by  special  matter  shows  that  they  are  not  actionable." 

1  Hankinson  v.  Bilby,  16  M.  &  W.  445  ;  2  C.  &  K.  440. 

2  1578,  4  Rep.  13,  14. 

100 


NEUTRAL   AVORDS.  *  108 


Illustrations. 

"Words  complained  of  :  —  "You  stole  my  apples."  The  defendant  cannot  be  al- 
lowed to  state  that  he  only  meant  to  say,  "You  have  tortiously  removed  my  apples 
under  an  unfounded  claim  of  right."  The  bystanders  could  not  possibly  have  under- 
stood from  the  word  used  that  a  civil  trespass  only  was  imputed.  Deverill  v.  Hulbert 
(Jan.  25th,  1878),  ex  relatione  med. 

But  where  the  words  complained  of  are,  "Thou  art  a  thief;  for  thou  tookest  my 
beasts  by  reason  of  an  execution,  and  I  will  hang  thee,"  no  action  lies,  for  it  is  clear 
that  the  whole  sentence  taken  together  imports  only  a  charge  of  trespass.  Wilk's 
Case,  1  Eoll.  Abr.  51  ;  Sibley  v.  Tomlins,  4  Tyrw.  90. 

*  Where  words  are  used  which  clearly  import  a  criminal  charge  (as,  "  You  *  109 
thief,"  or  "You  traitor,")  it  is  still  open  to  the  defendant  to  show  if  he  can 
that  he  used  them  merely  as  vague  terms  of  general  abuse,  and  that  the  bystanders 
must  have  understood  him  as  meaning  nothing  more  than  "You  rascal,"  or  "You 
scoundrel."  When  such  words  occur  in  a  string  of  non-actionable  epithets,  or  in  a 
torrent  of  general  vulgar  abuse,  the  jury  may  reasonably  infer  that  no  felonj'  was  seri- 
ously imputed.  If,  however,  the  jury  put  the  harsher  construction  on  defendant's 
language,  no  new  trial  will  be  granted  ;  for  it  is  a  question  entirely  for  them.  Minors 
V.  Leeford,  Cro.  Jac.  114;  Smith  v.  Ward,  Cro.  Jac.  674;  Penfold  v.  Westcote,  2 
Bos.  &  P.  N.  R.  335. 

Where  the  defendant  said  to  the  plaintiff  in  the  presence  of  others,  "You  are  a 
thief,  a  rogue,  and  a  swindler,"  it  was  held  that  the  defendant  could  not  call  a  wit- 
ness to  explain  the  particular  transaction  which  he  had  in  his  mind  at  the  time,  since 
he  did  not  in  any  way  expressly  refer  to  it  in  the  presence  of  his  hearers.  Martin  v. 
Loei,  2  F.  &  F.  654  ;  Read  v.  Ambridge,  6  C.  &  P.  308  ;  Hankinson  v.  Bilby,  16  M. 
&  W.  442  ;  2  C.  &  K.  440. 

But  where  the  defendant  said  :  —  "Thomson  is  a  damned  thief;  and  so  was  his 
father  before  him,  and  I  can  prove  it;"  but  added,  "Thomson  received  the  earnings 
of  the  ship,  and  ought  to  pay  the  wages,"  Lord  Ellenborough  held  that  the  latter 
words  qualified  the  former  and  showed  no  felony  was  imputed  ;  the  person  to  whom 
the  words  were  spoken  being  the  master  of  the  ship  and  acquainted  with  all  the 
circumstances  referred  to.  Thomson  v.  Bernard,  1  Camp.  48  ;  Bittridge's  Case,  4  Rep. 
19  ;  Gristle  v.  Cowell,  Peake,  4  ;  Day  v.  Robinson,  1  A,  &  E.  554  ;  4  N.  &  M.  884. 

3.  Neutral  Words. 

Where  the  defendant  has  used  only  ordinary  English  words, 
the  judge  can  decide  at  once  whether  they  are  prima  facie  action- 
able or  not.  But  where  the  words  are  in  a  foreign  language,  or 
are  technical  or  provincial  terms,  an  innuendo  is  absolutely  neces- 
sary to  disclose  an  actionable  meaning.  So,  too,  an  innuendo  is 
essential  where  ordinary  English  words  are  not  in  the  particular 
instance  used  in  their  ordinary  English  signification,  but  in  some 
peculiar  sense. 

Where  the  words  are  spoken  in  a  foreign  language  *  the  *  110 
original  words  should  be  set  out  in  the  Statement  of  Claim, 

101 


*  110  COXSTRUCTIOX   AXD   CEETAIXTY. 

and  then  an  exact  translation  should  be  added.^  (a)  In  the 
case  of  slander  an  averment  was  formerly  required  to  the  effect 
that  those  who  were  present  understood  that  language.^  And 
though  such  an  averment  is  no  longer  necessary,  the  fact  must 
still  be  proved  at  the  trial.  For  if  words  be  spoken  in  a  tongue 
altogether  unknown  to  the  hearers,  no  action  lies  ;^  for  no  injury 
is  done  to  the  plaintiff's  reputation.  But  if  a  single  bystander 
understood  them,  that  is  enough.  Where,  however,  the  words 
are  spoken  in  the  vernacular  of  the  place  of  publication  (as  Welsh 
words  spoken  in  Wales)  it  will  be  presumed  that  the  bystanders 
understood  them.  (5)  At  the  trial  the  correctness  of  the  trans- 
lation must  be  proved  by  a  sworn  interpreter. 

So  at  the  trial  whenever  the  words  used  are  not  ordinary 
English,  but  local,  technical,  provincial,  or  obsolete  expressions, 
or  slang  or  cant  terms,  evidence  is  admissible  to  explain  their 
meaning,  provided  such  meaning  has  been  properly  alleged  in 
the  Statement  of  Claim.  But  when  the  words  are  well-known 
and  perfectly  intelligible  English,  the  Court  will  give  them  their 
ordinary  English  meaning,  unless  it  is  in  some  way  shown  that 
that  meaning  is  inapplicable.  This  may  appear  from  the  words 
themselves ;  for  in  some  cases  to  give  them  their  ordinary  Eng- 
lish meaning  would  make  nonsense  of  them.  But  if  in  their 
ordinary  English  meaning  the  words  would  be  intelligible,  facts 
must  be  given  in  evidence  to  show  that  they  may  have  been  used 
in  a  particular  sense  on  this  particular  occasion.  After  that  has 
been  done  a  bystander  may  be  asked,  "  What  did  you  under- 
stand by  the  expression  used  ?  "  But  without  such  a  foun- 
*  111    dation  *  being  first  laid,  the  question  is  not  allowable.^ 

1  Zenobio  v.  Axtell,  6  T.  R.  162  ;  3  JI.  &  S.  116. 

2  Fleetwood  v.  Curl,  Cro.  Jac.  557  ;  Hob.  268. 

8  Jones  V.  Davers  {vel  Dawkes)  (1597),  Cro.  Eliz.  496  ;  1  Eoll.  Abr.  74. 
4  Daines  v.  Hartley,  3  Exch.  200  ;  18  L.  J.  Ex.  81  ;  12  Jur.  1093. 

(a)  Wormouth  r.  Cramer,  3  Wend.  394;  St.  156,  where  a  distinction  is  made  be- 

Kerschbaugher  I'.  Slusser,    12    Ind.    453.  tween  slander  and  libel  on  this  point.    See 

See  Lettman  v.  Ritz,  3  Sandf.  734  ;  Hick-  also  Kiene  v.  Ruff,  1  Iowa,  482  ;  Bechtell 

ley  V.  Grosjean,  6  Blackf.  351.  v.  Shatler,  Wright,  107. 

(6)  But  see  Palmer  v.  Harris,  60  Penn. 

102 


WOKDS  PEIIVIA  FACIE  LNXOCENT.  *  111 


Illustrations. 

"Words  complained  of:  —  "You  are  a  bunter."  No  innuendo:  Willes,  J.,  non- 
suited the  plaintiff,  on  the  ground  that  the  word  had  no  meaning  at  all,  and  could  not 
therefore  be  defamatory  in  ordinary  acceptation  ;  and  he  refused  to  allow  the  plaintiff 
to  be  asked,  what  the  word  "bunter"  meant.  Aliter,  had  there  been  an  innuendo 
averring  a  defamatory  sense  to  the  word  "bunter."  Rawlings  et  ux.  v.  Norbury,  1  F. 
&  F.  341. 

Words  spoken  to  an  attorney:  —  "Thou  art  a  daffidowndilly."  Innuendo,  mean- 
ing thereby  that  he  is  an  "  ambidexter,"  i.e.,  one  who  takes  a  fee  from  both  sides,  and 
betrays  the  secrets  of  his  client.  Held  that  an  action  lay  ;  1  Eoll.  Abr.  55  ;  Ainison 
V.  Blofield,  Carter,  214  ;  1  Roll.  Abr.  55. 

It  is  actionable  to  say  of  a  stockjobber  that,  "He  is  a  lame  duck;"  innuendo, 
"meaning  thereby  that  the  plaintiff  had  not  fulfilled  his  contracts  in  respect  of  the 
said  stocks  and  funds,"  (stockjobbing  being  now  legalised  by  the  23  &  24  Vict.  c.  28). 
Morris  and  Langdale,  2  Bos.  &  Pull.  284. 

The  word  "  Welcher  "  requires  an  innuendo  to  explain  its  meaning.  Blackman  ■;;. 
Bryant,  27  L.  T.  491. 

The  defendant  charged  the  plaintiff,  a  pawnbroker  and  silversmith,  with  the  unfair 
and  dishonorable  practice  of  "duffing;"  innuendo,  furbishing  up  damaged  goods  and 
pledging  them  with  other  pawnbrokers  as  new.  Hickinbotham  v.  Leach,  10  M.  &  W. 
361 ;  2  Dowl.  N.  S.  270. 

The  words,  "He  is  mainsworn,"  were  spoken  in  one  of  the  northern  counties  where 
"mainsworn"  is  equivalent  to  "perjured,"  (forsworn  with  his  hand  on  the  book). 
Held  actionable.  Slater  v.  Franks,  Hob.  126.  And  see  Coles  v.  Haveland,  Cro.  Eliz. 
250  ;  Hob.  12. 

A.  and  B.  were  partners,  and  were  conversing  with  the  defendant.  A.  said  they 
held  some  bills  on  the  plaintifiTs  firm;  the  defendant  said:  —  'iYou  must  look  out 
sharp  that  they  are  met  by  them."  At  the  trial,  B.  was  called  as  a  witness,  and  stated 
these  facts.  The  counsel  for  the  plaintiff  then  proposed  to  ask  B.  :  —  "  What  did  you 
understand  by  that  ?"  But  the  question  was  objected  to,  and  disallowed  by  the  judge 
(Pollock,  C.  B.)  in  that  form,  and  the  counsel  would  put  it  in  no  other  shape.  The 
jury  found  a  verdict  for  the  defendant ;  and  the  Court  of  Exchequer  refused  to  grant 
a  new  trial.  Daines  and  another  v.  Hartley,  3  Exch.  200  ;  IS  L.  J.  Ex.  81  ;  12  Jur. 
1093. 

The  defendant,  the  editor  of  a  newspaper,  owed  plaintiff  money  under  an 
*  award;  and  wrote  and  published  in  his  newspaper  these  words: —  "The  *  112 
money  will  be  forthcoming  on  the  last  day  allowed  by  the  award,  but  we  are 
not  disposed  to  allow  him  to  put  it  into  Wall-street  for  shaving  purposes  before  that 
period."  "Shaving"  in  New  York  means,  (i.)  discounting  bills  or  notes  ;  (ii.)  fleecing 
men  of  their  goods  or  money  by  overreaching,  extortion,  and  oppression.  The  declara- 
tion contained  no  innuendo  alleging  that  the  words  were  used  in  the  second  defamatory 
sense.     Held  no  libel,  on  demurrer.     Stone  v.  Cooper  (1845),  2  Denio  (N.  Y.),  293. 


4.  Words  prima  facie  innocent.,  hut  capable  of  a  defamatory  meaning. 

Wherever  the  defendant's  words  are  capable  both  of  a  harmless 
and  an  injurious  meaning,  it  will  be  a  question  for  the  jury  to 
decide  which  meaning  the  hearers  or  readers  would  on  the  occa- 

103 


*  112  CONSTKUCTION   AND   CERTAINTY. 

sion  in  question  have  reasonably  given  to  the  words,  (a)  Here 
an  innuendo  is  essential  to  show  the  latent  injurious  meaning. 
Without  an  innuendo,  there  would  be  no  cause  of  action  shown 
on  the  record.  And  such  innuendo  should  be  carefully  drafted  ; 
for  on  it  the  plaintiff  must  take  his  stand  at  the  trial.  He  can- 
not during  the  course  of  the  case  adopt  a  fresh  construction. 
He  may,  it  is  true,  fall  back  on  the  natural  and  obvious  meaning 
of  the  words :  but  that  we  assume  here  not  to  be  actionable. 
And  such  innuendo  must  be  specific ;  it  must  distinctly  aver 
a  definite  actionable  meaning.  A  general  averment,  such  as, 
"  using  the  words  in  a  defamatory  sense,"  or  ''  for  the  purpose 
of  creating  an  impression  unfavorable  to  the  plaintiff,"  would  be 
insufficient.^ 

The  words,  too,  must  be  reasonably  susceptible  of  the  defam- 
atory meaning  put  upon  them  by  the  innuendo,  or  the  Statement 
of  Claim  will  be  demurrable ;  or  if  there  be  no  demurrer, 

*  113    the  judge  at  the  trial  should  stop  the  *  case.     In  fact,  the 

words  in  that  case  belong  rather  to  Class  5,  for  they  are 
incapable  of  a  defamatory  meaning. 

If,  however,  the  words,  though  primd  facie  innocent,  are 
reasonably  susceptible  of  a  defamatory  meaning,  then  it  is  a 
question  for  the  jury  in  which  meaning  would  bystanders  or 
readers  have  reasonably  understood  them.  In  such  a  case,  if 
the  defendant  demurs  to  the  Statement  of  Claim,  his  demurrer 
will  be  overruled ;  ^  if  the  judge  at  the  trial  nonsuits  the  plain- 
tiff, the  Court  will  order  a  new  trial.^ 

When  it  is  clear  that  the  words  complained  of  are  not  defam- 
atory in  their  primary  sense,  there  will  still  be  a  further  question  : 
—  Were  there  any  facts  known  both  to  speaker  and  hearer  which 
would  reasonably  lead  the  latter  to  understand  the  words  in  a 
secondary  and  a  defamatory  sense  ?  And  this  is  a  question  for 
the  jury,  if  there  be  any  evidence  to  go  to  them  of  such  facts.^ 

1  Cox  V.  Cooper,  12  W.  R.  75  ;  9  L.  T.  329. 

2  Jenner  and  another  v.  A'Beckett,  L.  R.  7  Q.  B.  11 ;  41  L.  J.  Q.  B.  14  ;  20  W.  R. 
181  ;  25  L.  T.  464. 

8  Hart  and  anotlier  v.  Wall,  2  C.  P.  D.  146  ;  46  L.  J.  C.  P.  227;  25  W.  R.  373. 
*  Capital  &  Counties  Bank  v.  Henty  &  Sons  (C.  A.),  5  C.  P.  D.  514  ;  49  L.  J.  C.  P. 
830  ;  28  W.  R.  851 ;  Ruel  v.  Tatnell,  29  W.  R.  172  ;  43  L.  T.  507. 

(a)  Hansborough  v.  Stinnett,  25  Gratt.  Mass.  371,  382  ("she  is  a  bad  girl"); 
495  ("  D.  killed  my  beef") ;  Snell  v.  Snow,  Riddell  v.  Thayer,  127  Mass.  487  ( "  bad 
13  Met.  278  ;  Fitzgerald  v.  Robinson,  112     woman")  ;  Peterson  v.  Sentman,  37  Md. 

104 


WORDS  PRIMA  FACIE   INNOCENT.  *  113 

It  will  be  of  no  avail  for  the  defendant  to  urge  (except  in 
mitigation  of  damages)  that  he  meant  the  words  in  the  innocent 
sense,  if  the  jury  are  satisfied  that  ordinary  readers  or  bystand- 
ers would  have  certainly  understood  them  in  the  other  sense. 
The  jury  will  consider  the  whole  of  the  circumstances  of  the 
case,  the  occasion  of  publication,  the  relationship  between  the 
parties,  &c.  Also  whenever  the  words  of  a  libel  are  ambiguous, 
or  the  intention  of  the  writer  equivocal,  subsequent  libels  are 
admissible  in  evidence  to  explain  the  meaning  of  the  first,  or  to 
prove  the  innuendoes,  even  although  such  subsequent  libel 
1)6  written  after  action  brought.  The  *  decision  of  the  *  114 
jury  on  the  question  is  final  and  conclusive. 

The  plaintiff  may  also  aver  in  his  Statement  of  Claim  that  the 
words  were  spoken  ironically ;  and  it  will  then  be  a  question  for 
the  jury  quo  animo  the  words  were  used. 

Illustrations. 

"He  is  a  healer  of  felons;"  innuendo,  a  concealer  of  felons.  Held  actionable. 
Pridham  v.  Tucker,  Yelv.  153  ;  Hob.  126  ;  Cart.  214. 

"  He  has  set  his  own  premises  on  fire."  These  words  are  primd  facie  innocent  ; 
but  may  become  actionable,  if  it  be  averred  that  the  house  was  insured,  and  that  the 
words  were  intended  to  convey  to  the  hearers  that  the  plaintiff  had  purposely  set  fire 
to  his  own  premises  with  intent  to  defraud  the  insurance  office.  Sweetapple  v.  Jesse, 
5  B.  &  Ad.  27  ;  2  N.  &  M.  36.  («) 

"  She  secreted  one  and  sixpence  under  the  till,  stating,  'These  are  not  times  to  be 
robbed.'"  No  innuendo.  There  being  nothing  to  show  that  the  Is.  M.  was  not  her 
own  money,  the  Court  arrested  judgment ;  for,  though  special  damage  was  alleged,  it 
was  not  the  necessary  and  natural  consecjuence  of  the  words,  as  set  out  in  the  declara- 
tion.    Kelly  V.  Partington,  5  B.  &  Ad.  645  ;  3  N.  &  M.  116. 

The  yilaintifi",  Mary  Griffiths,  was  a  butcher  and  had  a  son  Matthew.  Words  spoken 
by  defendant: — -"Matthew  uses  two  balls  to  his  mother's  steelyard;"  innuendo, 
"  meaning  that  plaintiff  by  Matthew,  her  agent  and  servant,  used  improper  and  fraud- 
ulent weights  in  her  said  trade,  and  defrauded  and  cheated  in  her  said  trade."  After 
verdict  for  the  plaintiff,  held  that  the  words,  as  stated  and  explained,  were  actionable. 
Griffiths  I'.  Lewis,  7  Q.  B.  61 ;  8  Q.  B.  841 ;  14  L.  J.  Q.  B.  197  ;  15  L.  J.  Q.  B.  249  ; 
9  Jur.  370  ;  10  Jur.  711. 

140  ("bad  liouse."     But  see  Fitzgerald  v.  Brady  v.  Wilson,  4  Hawks,  93  ;  Gage  v. 

'Rohinsow,  supra.  /Sccws of  "bawdy  house."  Shelton,  3  Rich.  242;  Fowler  i?.  Gilbert, 

Griffin  v.  Moore,  43  Md.  246).  38  ilich.  292  ;  Norman  v.  Orton,  32  Wis. 

{a)  See  Chace  v.  Sherman,  119  Mass.  106  ;  Weil  v.  Schmidt,  28  Wis.  137.     To 

387;  Brettun  v.  Anthony,  103  Mass.   37;  charge  A.  with  an  attempt  at  arson,  and  to 

Waters  v.  .Jones,  3  Port.  (Ala.)  442  ;  Gid-  add,  "When  I  drove  him  (A.)  off  I  saw 

dens  V.  Mirk,  4  Ga.  364  ;  Logan  v.  Steele,     B holding  a  torch  for  him  "  is  to 

1  Bibb,  593 ;  Wallace  v.  Young,  5  T.  B.  charge   B.    with  participation  ;    and    the 

Mon.   155  ;  Hoiise  v.  House,  5  Har.  &  J.  charge  if  false  is  actionable  per  sc  by  B. 

125  ;  Jones  v.  Hungerford,  4  Gill  &  J.  402  ;  Hooper  v.  Martin,  54  Ga.  648. 

105 


*  114  CONSTEUCTION  AND   CERTAINTY. 

To  say  that  the  plaintiff  is  "Man  Friday"  to  another  is  not  actionable,  without  an 
innuendo  averring  that  the  term  imputed  undue  subserviency  and  self-humiliation. 
Forbes  v.  King,  2  L.  J.  Ex.  109  ;  1  Dowl.  672.    See  Woodgate  v.  Ridout,  4  F.  &  F.  202. 

Words  complained  of :  —  "  The  old  materials  have  been  relaid  by  you  in  the  asphaUe 
work  executed  in  the  front  of  the  Ordnance  Office,  and  I  have  seen  the  work  done." 
Innuendo,  "that  the  plaintiff  had  been  guilty  of  dishonesty  in  his  trade  by  laying 
down  again  the  old  asphalte  which  had  before  been  used  at  the  entrance  of  the  Ord- 
nance Office,  instead  of  new  asphalte  according  to  his  contract ; "  and  this  innuendo 
was  held  not  too  large.  Verdict  for  the  plaintiff.  Damages,  40s.  Baboneau  v.  Far- 
rell,  15  C.  B.  360 ;  24  L.  J.  C.  P.  9  ;  3  C.  L.  R.  42  ;  1  Jur.  N.  S.  114. 

*  115  *  An  action  was  brought  for  the  following  libel  on  the  plaintiff  in  the  way 

of  his  trade  : —  "Society  of  Guardians  for  the  Protection  of  Trade  against 
Swindlers  and  Sharpers.  I  am  directed  to  inform  you  that  the  persons  using  the  firm 
of  Goldstein  and  Co.  are  reported  to  this  Society  as  improper  to  be  proposed  to  be  bal- 
loted for  as  members  thereof."  After  verdict  for  the  jilaintiff,  the  Court  arrested  judg- 
ment, because  there  was  no  averment  that  it  was  the  custom  of  the  Society  to  designate 
swindlers  and  sharpers  by  the  term  "  improper  persons  to  be  members  of  this  Society." 
[There  was  an  innuendo,  "  meaning  thereby  that  the  plaintiff  was  a  swindler  and  a 
sharper,"  &c.,  which  would  be  sufficient  now  ;  but  before  the  C.  L.  P.  Act,  1852,  s.  61, 
an  innuendo  required  a  prefatory  averment  to  support  it.]  The  words  in  their  natural 
and  obvious  meaning  were  held  to  be  no  libel.  Goldstein  v,  Foss,  6  B.  &  C.  154  ;  1 
M.  &  P.  402  ;  2  Y.  &  J.  146  ;  9  D.  &  R.  197  ;  (in  Ex.  Ch.)  4  Biug.  489;  2  C.  &  P. 
252 ;  Capel  and  others  v.  Jones,  4  C,  B.  259  ;  11  Jur.  396. 

To  say  of  a  merchant,  "  He  hath  eaten  a  spider,"  Mr.  Justice  Wild  said  was  "  ac- 
tionable with  a  proper  averment  what  the  meaning  is."  But  the  report  does  not 
vouchsafe  any  explanation  as  to  what  the  meaning  was.  Franklyn  v.  Butler,  Pasch. 
11  Car.  I.,  cited  in  Annison  v.  Blofield,  Carter,  214. 

The  words,  "'Ware  hawk  there;  mind  what  you  are  about,"  will,  with  proper 
averments,  amount  to  a  charge  of  insolvency  against  the  plaintiff,  a  trader ;  and  be 
therefore  actionable.     Orpwood  v.  Barkes  (vd  Parkes),  4  Bing.  261  ;  12  Moore,  492. 

The  defendant  said  to  an  upholsterer  :  —  "  You  are  a  soldier  ;  I  saw  you  in  your 
red  coat  doing  duty  ;  your  word  is  not  to  be  taken."  These  words  are  primd  facie  not 
actionable  ;  but  it  was  explained  that  there  was  then  a  common  practice  for  tradesmen 
to  sham  enlisting  so  as  to  avoid  being  arrested  for  debt.  The  words  were  therefore 
held  actionable  as  damaging  the  credit  of  a  trader.  Arne  v.  Johnson,  10  Mod.  Ill ; 
Gostling  V.  Brooks,  2  F.  &  F.  76. 

The  defendant  said  of  the  plaintiff  :  —  "  Foulger  trapped  three  foxes  in  Ridler's 
Avood."  These  words  are  primd  facie  not  actionable.  But  the  declaration  averred  that 
the  plaintiff  was  a  gamekeeper,  that  it  is  the  duty  of  a  gamekeeper  not  to  kill  foxes, 
that  the  plaintiff  was  employed  expressly  on  the  terms  that  he  would  not  kill  foxes, 
and  that  no  one  who  killed  foxes  would  be  employed  as  a  gamekeeper.  Held,  on  de- 
murrer, a  good  declaration  ;  for  the  words,  so  explained,  clearly  imputed  to  the  plain- 
tiff misconduct  in  his  office  or  occupation,  and  were  therefore  actionable  without  proof 
of  special  damage.  Foulger  v.  Newcomb,  L.  R.  2  Ex.  327  ;  36  L.  J.  Ex.  169  ;  15  W. 
R.  1181  ;  16  L.  T.  595. 

A  landlord  sent  to  his  tenants  a  notice  :  —  "  Messrs.  Henty  &  Sons  hereby  give  no- 
tice that  they  will  not  receive  in  payment  any  cheques  drawn  on  any  of  the  branches  of 
the  Capital  and  Counties  Bank."     Innuendo,   "meaning  thereby  that  the  plaintiffs 
were  not  to  be  relied  upon  to  meet  the  cheques  drawn  upon  them,  and  that 
*  116     their  position  was  such  that  they  *  were  not  to  be  trusted  to  cash  the  cheques  of 
their  customers. "   Held  that  the  words  in  their  primary  sense  were  not  libellous  ; 

106 


WORDS   CLEARLY  INNOCENT.  *  116 

and  that  as  no  evidence  was  offered  of  facts  known  to  the  tenants  which  could  reason- 
ably induce  them  to  understand  the  words  in  the  defamatoiy  sense  ascribed  to  them  by 
the  innuendo,  there  was  no  question  for  the  jury,  and  the  judge  should  have  stopped 
the  case.  Capital  and  Counties  Bank  v.  Henty  and  Sons  (C.  A.),  5  C.  P,  D.  514  ;  49 
L.  J.  C.  P.  830  ;  28  W.  R.  851  [reversing  the  decision  of  the  C,  P.  D.,  28  W,  R.  490  ; 
42  L.  T.  314]. 

Ironical  praise  may  be  a  libel  ;  e.g.,  calling  an  attorney  "an  honest  lawyer."  Boy- 
dell  V.  Jones,  4  M.  &  W.  446 ;  1  H.  &  H.  408  ;  7  Dowl.  210. 

It  is  actionable  to  say  ironically  :  —  "  You  will  not  play  the  Jew  or  the  hypocrite." 
R.  V.  Garret  (Sir  Baptist  Hicks'  Case),  Hob.  215  ;  Popham,  139. 

Ironical  advice  to  the  Lord  Keeper  by  a  country  parson,  "to  be  as  wise  as  Lord 
Somerset,  to  manage  as  well  as  Lord  Haversham,  to  love  the  church  as  well  as  the 
Bishop  of  Salisbury,"  &c.,  is  actionable.     R.  v.  Dr.  Brown,  11  Mod.  86  ;  Holt,  425. 


5.    Words  incapable  of  a  defamatory  meaning. 

But  where  the  words  can  bear  but  one  meaning,  and  that  is 
obviously  not  defamatory,  then  no  innuendo  or  other  allegation 
on  the  pleadings  can  make  the  words  defamatory ;  the  Statement 
of  Claim  is  demurrable ;  and  should  the  defendant  not  see  fit  to 
demur,  still  the  judge  at  the  trial  will  nonsuit  the  plaintiff  and 
not  permit  the  case  to  go  to  the  jury.  No  parol  evidence  is  ad- 
missible to  explain  the  meaning  of  ordinary  English  words,  in 
the  absence  of  special  circumstances  'showing  that  in  the  case  be- 
fore the  Court  the  words  do  not  bear  their  usual  signification. 
"  It  is  not  right  to  say  that  a  judge  is  to  affect  not  to  know  what 
everybody  else  knows  —  the  ordinary  use  of  the  English  lan- 
guage." ^  The  fact  that  actual  damage  has  in  fact  followed 
from  the  publication  is  immaterial  in  considering  what  is  the 
true  construction  of  the  libel.^ 

*  Illustrations.  *  117 

Words  complained  of  :  —  "He  was  the  ringleader  of  the  nine  hours'  s}'stem."  "He 
has  ruined  the  town  by  bringing  about  the  nine  hours'  system,"  &c.  The  declaration 
contained  no  innuendo,  and  no  sufficient  averment  that  the  words  were  spoken  of  the 
plaintiff  in  the  way  of  his  trade,  and  on  demurrer,  was  held  bad.  Miller  v.  David,  L. 
R.  9  C.  P.  118  ;  43  L.  J.  C.  P.  84  ;  22  W.  R.  332  ;  30  L.  T.  58. 

Words  complained  of  :  —  "  We  are  requested  to  state  that  the  honorary  secretary 
of  the  Tichborne  Defence  Fund  is  not  and  never  was  a  captain  in  the  Royal  Artillery 
as  he  has  been  erroneously  described."  Innuendo,  that  the  plaintiff  was  an  impostor, 
and  had  falsely  and  fraudulently  represented  himself  to  be  a  captain  in  Royal  Artillery. 
Bovill,  C.J.,  held  that  the  words  were  not  reasonably  capable  of  the  defamatory  mean- 

1  Per  Brett,  J.,  1  C.  P.  D.  572. 

2  Per  Lord  Coleridge,  C.J.,  2  C.  P.  D.  150. 

107 


*  117  CONSTRUCTION   AND   CEETAINTY. 

ing  ascribed  to  them  by  the  innuendo,  and  nonsuited  the  plaintiff.     Held  that  the 
nonsuit  was  right.     Hunt  v.  Goodlake,  43  L.  J.  C.  P.  54  ;  29  L.  T.  472. 

The  plaintiff  was  a  certificated  art  master,  and  had  been  master  at  the  Walsall 
Science  and  Art  Institute.  His  engagement  there  ceased  in  June,  1874,  and  he  then 
started,  and  became  master  of,  another  school  which  was  called  "The  Walsall  Govern- 
ment School  of  Art,"  and  was  opened  in  August.  In  September  the  following  adver- 
tisement appeared  in  the  Walsall  Observer,  signed  by  the  defendants  as  chainnan, 
treasurer  and  secretary  of  the  Institute  respectively  : —  "  Walsall  Science  and  Art  In- 
stitute. The  public  are  informed  that  Mr.  Mulligan's  connection  with  the  Institute 
has  ceased,  and  that  he  is  not  authorized  to  receive  subscriptions  on  its  behalf."  The 
declaration  set  out  this  advertisement  with  an  innuendo, —  "meaning  thereby  that 
the  plaintiff  falsely  assumed  and  pretended  to  be  authorized  to  receive  subscriptions  on 
behalf  of  the  said  Institute."  At  the  trial  Quain,  J.,  directed  a  nonsuit  on  the  ground 
that  the  advertisement  was  not  capable  of  the  defamatory  meaning  attributed  by  the 
innuendo  :  —  Held  that  the  nonsuit  was  right ;  that  the  advertisement  was  not  capable 
of  any  defamatory  meaning.  Mulligan  v.  Cole  and  others,  L.  R.  10  Q.  B.  549;  44  L. 
J.  Q.  B.  153  ;  33  L.  T.  12. 

*  118  *  Certainty. 

But  even  where  the  meaning  of  the  defendant's  words  is  clear 
or  has  been  ascertained,  the  question  remains :  —  Has  he  said 
enough  ?  Was  the  imputation  sufficiently  definite  to  injure  the 
plaintiff's  reputation  ?  Is  it  clear  that  it  is  the  plaintiff  to  wliom 
he 'referred?  Unless  these  questions  can  be  answered  in  the 
affirmative,  no  action  lies.  There  must  be  a  specific  imputation 
cast  on  the  person  suing. 

This  is  clearly  only  a  part  of  the  construction  of  the  words ;  but  it  is 
convenient  to  collect  the  cases  under  a  separate  head,  which  may  be  de- 
noted by  the  well-known  pleading  phrase  Certainty.  Often  the  only  ques- 
tion of  construction  arising  in  a  case  may  be  one  of  certainty. 

The  Court  formerly  expected  to  be  assisted  in  dealing  with  these  ques- 
tions by  a  variety  of  minute  averments  in  the  plaintiff's  declaration.  Thus, 
it  was  necessary  that  there  should  be  a  colloquium,  an  averment  that  the 
defendant  was  speaking  of  the  plaintiff,  as  well  as  constant  innuendoes  in 
the  statement  of  the  words  themselves,  "  he  (meaning  thereby  the  plain- 
tiff)." So,  too,  many  other  allegations  were  required  describing  the  locality, 
the  relationship  between  the  various  persons  mentioned,  and  all  the  sur- 
rounding circumstances  necessary  to  fully  understand  the  defendant's  words. 
And  these  matters  could  not  properly  be  proved  at  the  trial  unless  they 
were  set  out  on  the  record  ;  or  if  they  were,  and  the  plaintiff  had  a  verdict, 
the  Court  would  subsequently  arrest  judgment,  on  the  ground  that  it  did  not 
appear  clearly  on  the  face  of  the  record  that  the  words  were  actionable. 
And  this  technicaUty  was  carried  to  an  absurd  extent.  Thus,  where  the 
defendant  said,  "  Thou  art  a  murderer,  for  thou  art  the  fellow  that  didst 
108 


INTEODUCTORY  AVERilENTS.  *  118 

kill  Mr.  Sydnam's  man,"  the  Court  of  Exchequer  Chamber,  on  error  brought, 
arrested  judgment,  because  there  was  no  averment  that  any  man  of  Mr. 
Sydnam's  had  in  fact  been  killed. i     (Had  the  words  been  ''and 
thou  art,"  *  instead  of  ''for  thou  art,"  the  plaintiff  would  probably    *  119 
have  been  allowed  to  recover. 2)     Again,  in  Ball  v.  Eoane,^  the  words 

-were : "  There  was  never  a  robbery  committed  within   forty  miles  of 

Wellingborough,  but  thou  hadst  thy  part  in  it."  After  a  verdict  for  the 
plaintiff,  the  Court  arrested  judgment,  "because  it  was  not  averred  that 
there  ivas  any  robbery  committed  within  forty  miles,  &c.,  for  otherwise  it 
is  no  slander."  So  in  Foster  v.  Browning,4  where  the  words  were,  "  Thou 
art  as  arrant  a  thief  as  any  is  in  England,"  the  Court  arrested  judgment, 
because  the  plaintiff  had  not  averred  "  that  there  was  any  thief  in  Eng- 
land." 5  But  the  climax  was  reached  in  a  case  cited  in  Dacy  v.  Clinch,^  where 
the  defendant  had  said  to  the  plaintiff,  "  As  sure  as  God  governs  the  world,  or 
King  James  this  kingdom,  you  are  a  thief."  After  verdict  for  the  plaintiff, 
the  defendant  moved  in  arrest  of  judgment,  on  the  ground  that  there  was 
no  averment  on  the  record  that  God  did  govern  the  world,  or  King  James 
this  kingdom.  But  here  the  Court  drew  the  line,  and  held  that  "  these 
things  were  so  apparent,"  that  neither  of  them  need  be  averred.  And  even 
in  the  present  century,  instances  of  similar  technicality  are  not  wanting, 
though  their  absurdity  is  not  so  flagrant.  Thus,  in  Solomon  v.  Lawson,'^ 
the  libel  consisted  of  two  letters  to  the  Times  ;  the  first  made  a  charge  gen- 
erally on  "  the  authorities  "  at  St.  Helena ;  and  the  second  letter  brought 
it  home  to  the  plaintiff  in  particular.  Neither  letter  was  thus  a  complete 
libel  in  itself.  In  the  first  count  of  the  declaration  the  first  letter  was  fully 
set  out ;  in  the  second  count  both  letters  were  set  out  verbatim.  The  first 
count  was  held  bad,  because  it  set  out  only  half  the  libel.  The  second 
count  was  also  held  bad,  because  the  pleader  in  setting  out  the  first  letter 
for  the  second  time  had  introduced  it  with  the  words  "  in  sitbstance  as  fol- 
lows." The  Court  decided  that  it  ought  to  have  been  set  out  verbatim  :  so 
it  was ;  but  because  the  pleader  said  he  had  only  set  out  the  substance, 
judgment  was  arrested.  Lord  Denman  would,  it  seems,  have  given  judg- 
ment for  the  plaintiff,  had  the  pleader  used  the  word  "  tenor,"  in- 
stead of  "  substance^  So,  *  too,  in  Angle  v.  Alexander,^  the  words  *  120 
were  thus  set   out   with   innuendoes   in   the   declaration,    "You 

1  BaiTons  v.  Ball  (1614),  Cro.  Jac.  331.     See  RatcliflF  v.  Michael,  ih.,  and  Uptou  v. 
Pmfold,  Comyn,  267. 

2  See  Minors  v.  Leeford,  Cro.  Jac.  114.  '  (1593),  Cro.  Eliz.  308. 
*  (1625),  Cro.  Jac.  688. 

6  See  also  Johnson  ■;;.  Sir  John  Aylmer,  Cro.  Jac.  126  ;  Sir  Thomas  Holt  v.  Astrigg, 
Cro.  Jac.  184;  Slocomb's  Case,  Cro.  Car.  442.  ^  Q_QQ\\  Sid.  53. 

^  8  Q.  B.  823  ;  15  L.  J.  Q.  B.  253  ;  10  Jur.  796. 
8  7  Bing.  119 ;  1  Cr.  &  J.  143  ;  4  M.  &  P.  870 ;  1  Tjtw.  9. 

109 


*  120  CONSTRUCTION   AND   CERTAINTY. 

(meaning  the  said  plaintiff)  are  a  regular  prover  under  bankruptcy  (mean- 
ing tliat  the  said  plaintiff  was  accustomed  to  prove  fictitious  debts  under 
commissions  of  bankruptcy) ;  you  are  a  regular  bankrupt  maker  ;  if  it  was 
not  for  some  of  your  neighbors,  your  shop  would  look  queer."  And  the 
Court  arrested  judgment  because  there  was  no  prefatory  averment  that  the 
defendant  had  been  accustomed  to  employ  the  words  "  prover  under  bank- 
ruptcy," in  the  meaning  set  out  in  the  innuendo.^ 

But  now,  by  s.  61  of  the  Common  Law  Procedure  Act,  1852,  the  collo- 
quium and  all  other  such  frivolous  averments  are  rendered  unnecessary  ; 
and  Order  XIX.  r.  4,  requires  that  only  material  facts  need  be  stated  in  the 
pleadings.  The  pleader  must  judge  what  facts  are  material ;  and  he  will 
also  insert  averments,  which,  though  not  essential,  will  help  to  make  the 
case  clear,  by  explaining  what  is  to  follow.^  But  Avhere  the  plaintiff  is 
suing  for  words  spoken  of  him  in  the  way  of  his  office,  profession,  or 
trade,  there  it  is  absolutely  necessary  to  aver  that  at  the  time  when  the 
words  were  spoken  the  plaintiff  held  such  office  or  carried  on  such  pro- 
fession or  trade.  And  there  should  also  be  an  averment  that  the  words 
were  spoken  by  the  defendant  with  reference  to  such  office,  profession, 
or  trade. 

1.   Certainty  of  the  imputation. 

Where  words  are  sought  to  be  made  actionable,  as  charging  the 
plaintiff  with  the  commission  of  a  crime,  we  have  seen  that  an 
indictable  offence  must  be  specifically  imputed,  (a)  It  will  not 
be  sufficient  to  prove  words  which  only  amount  to  an  accusation 
.of  fraudulent,  dishonest,  vicious,  or  immoral  conduct,  so  long  as  it 
is  not  criminal ;  (5)  or  of  a  mere  intention  to  commit  a 

*  121    crime,  not  evidenced  *  by  any  overt  act.     But  still  it  is  not 

necessary  that  the  alleged  ci'ime  should  be  stated  with  all 
the  technicality  or  precision  of  an  indictment ;  if  the  crime  be  im- 
puted in  the  ordinary  language  usually  employed  to  denote  it  in 
lay  .conversation,  (e)     All  that  is  requisite  is  that  the  bystanders 

1  See  also  Goldstein  v.  Foss  and  another,  6  B.  &  C.  154  ;  4  Bing.  489  ;  9  D.  &  R. 
197  ;  2  C.  &  P.  252  ;  1  M.  &  P.  402  ;  2  Y.  &  J.  146  ;  and  other  cases  cited,  ante,  p.  104. 

2  As  in  Foulger  v.  Newcomb,  L.  R.  2  Ex.  327  ;  36  L.  J.  Ex.  169  ;  15  W.  R.  1181  ; 
16  L.  T.  595. 

(a)  The  words  used   and  not   merely  Miller,  8  Johns.  74.     But  there  is  doubt- 

their  supposed   effect  should    be  alleged,  less  a  distinction  as  to  certainty  between 

Haselton  v.  Weare,  8  Vt.  484  ;  Yundt  v.  the  effect  of  an  allegation  on  demurrer  and 

Yundt,  12  Serg.  &  R.  427.  evidence  in  support  of  a  charge,  especially 

(h)  Perry  I).  Porter,  124  Mass.  338.  after  verdict.  Kennedyy.  Gifford,  19  Wend. 

(c)   See   Hoar  v.   Ward,    47   Vt.   657  ;  276  ;  Miller  v.  Maxwell,  16  Wend.  9. 
Waugh  V.  Waugh,  47  Ind.  580  ;  Miller  v. 

110 


CHARGES   OF   CREME.  *  121 

should  clearly  understand  that  the  plaintiff  is  charged  with  the 
commission  of  a  specific  crime.  "  The  meaning  of  the  words  is 
to  be  gathered  from  the  vulgar  import,  and  not  from  any  technical 
legal  sense.^  (a) 

Illustrations. 

Treason. 

The  following  words  have  been  held  sufficiently  definite  to  constitute  a  charge  of 
treason,  or  at  least  of  sedition,  and  therefore  actionable  :  — 

Thy  master  is  "  no  true  subject."  AYaldegrave  v.  Agas,  Cro.  Eliz.  191.  Sed  qiccere. 
Fowler  v.  Aston,  Cro.  Eliz.  268  ;  1  Roll.  Abr.  43. 

"  He  consented  to  the  late  rebels  in  the  North."     Stapleton  v.  Frier,  Cro.  Eliz.  251. 

"  Thou  art  a  rebel,  and  all  that  keep  thee  company  are  rebels,  and  thou  art  not  the 
Queen's  friend."     Redston  v.  Eliot,  Cro.  Eliz.  638  ;  1  Roll.  Abr.  49. 

"  Thou  art  an  enemy  to  the  State."     Charter  v.  Peter,  Cro.  Eliz.  602. 

"  He  has  the  Pretender's  picture  in  his  room,  and  I  saw  him  drink  his  health.  And 
he  said  he  had  a  right  to  the  Crown."  Fry  v.  Came  (1724),  8  Mod.  283.  How 
V.  Prin  (1702),  Holt,  652  ;  7  Mod.  107  ;  2  Ld.  Raym.  812  ;  2  Salk.  694  ;  1  Brown 
Py.  C.  64. 

But  to  say  merely  "Thou  art  a  rebel,"  was  adjudged  not  actionable.  Fountain  v. 
Rogers  (1601),  Cro.  Eliz.  878. 

Murder. 

So  it  is  a  sufficient  charge  of  murder  to  say  :  (b)  — 

"  Thou  hast  killed  thy  master's  cook."  Cooper  v.  Smith,  Cro.  Jac.  423  ;  1  Roll. 
Abr.  77. 

"  I  am  thoroughly  convinced  that  you  are  guilty  of  the  death  of  Daniel  Dolly,  and 
rather  than  you  should  want  a  hangman,  I  will  be  your  executioner."  Peake  v.  Old- 
ham, Cowp.  275  ;  2  Wm.  Bl.  959. 

*  But  it  is  not  sufficient  to  say  :  —  122 

"  Hext  seeks  my  life."     "  Because  he  may  seek  his  life  lawfully  upon  just 
cause."     Hext  v.  Yeomans,  4  Rep.  15. 

"  He  was  the  cause  of  the  death  of  Dowland's  child,"  because  a  man  might  inno- 
cently cause  the  death  of  another  by  accident  or  misfortune.  Miller  v.  Buckdon,  2 
Buls.  10. 

"Thou  wouldst  have  killed  me,"  for  here  a  murderous  intention  only  is  imputed. 
Dr,  Poe's  Case,  1  Viu.  Abr.  440,  cited  in  2  Buls.  206. 

1  Per  Buller,  J.,  in  Colman  v.  Godwin,  3  Dougl.  91  ;  2  B.  &  C.  285  (n.). 

(rt)  It  must  not  be  supposed  from  this  Andros,  32  Vt.  55.     But  to  make  an  honest 

that  to  affirm  in  terms  one's  mere  belief  charge  of  crime  upon  a  mistaken  view  of 

that  the  plaintiff  has  committed  a  crime  is  the  law,  stating  the  facts  at  the  same  time, 

not  actioiftible.     It  matters  not  in  such  a  is  not  actionable.     Hall  v.  Adkins,  59  Mo. 

case  that  the  defendant  did   believe  the  144  ;    Pasley  v.  Kemp,  22  Mo.  407.     See 

charge  true  and  spoke  the  words  in  good  ante,  page  94,  note. 

faith,    except    as   affecting    the   damages.  {b)  It  is  not  necessary  to  allege  that  the 

Johnson  v.  St.  Louis  Despatch  Co.,  1  Mo.  person  is  dead.     Stallings  v.  Newman,  26 

App.  565  ;  s.  c.  65  Mo.  539  ;    Dickey  v.  Ala.  300  ;  Teuney  v.  Clement,  10  N.  H.  52. 

Ill 


*  122 


CONSTEUCTION  AND   CEr.TAINTY. 


■'  Forgery. 

The  following  words  have  been  held  a  sufficient  charge  of  forgery  :  (a)  — 

"This  is  a  counterfeit  warrant  made  by  Mr.  Stone."  Stone  v.  Smalcombe,  Cro. 
Jac.  648. 

"Thou  hast  forged  a  privy  seal,  and  a  commission."  Per  cur.  "  'A  commission' 
shall  be  intended  the  king's  commission,  under  the  privy  seal."  Baal  v.  Baggerley, 
Cro.  Car.  326. 

"  You  forged  my  name,"  although  it  is  not  stated  to  what  deed  or  instrument. 
Jones  V.  Heme,  2  Wils.  87.     Overruling  Anon.,  3  Leon.  231;  1  KoU.  Abr.  65. 

Larceny. 

The  following  words  are  a  sufficient  charge  of  larceny  :  (b)  — 

"  Baker  stole  my  box-wood,  and  I  will  prove  it."  It  was  argued  that  it  did  not 
appear  from  the  words  that  the  box-wood  was  not  growing  ;  and  that  to  cut  down  and 


(rt)  See  ante,  p.  55. 

{b)  Even  to  say,  "You  are  no  thief" 
may  be  actionable,  for  it  may  be  ironically 
said.     Johnson  v.  St.  Louis  Despatch  Co., 

I  Mo.  App.  565 ;  s.  c.  65  Mo.  539.  Fur- 
ther what  amounts  to  a  charge  of  larceny 
see  Porter  v.  Choen,  60  Ind.  338  ;  Priehard 
V.  Lloyd,  2  Ind.  154  j  Hart  v.  Coy,  40 
Ind.  553  ;  Ward  v.  Colyhan,  30  Ind. 
395  ;  Fawsett  v.  Clark,  48  Md.  494  ;  Hayes 
V.  Ball,  72  N.  Y.  418  ;  Georgia  v.  Kepford, 
45  Iowa,  48  ;  Wing  v.  Wing,  66  Maine, 
62  ;  Allen  v.  Hillman,  12  Pick.  101  ;  Dun- 
nell  V.  Fiske,  11  Met.  551  ;  Edgerly  v. 
Swain,  32  N.  H.  478  ;  Harrington  v.  Miles, 

II  Kans.  480  ;  Hume  v.  Arrasmith,  1 
Bibb,  165  ;  Hawn  v.  Smith,  4  B.  Mon. 
85  ;  Tillman  v.  Willis,  61  Ga.  433  ;  Rod- 
gers  V.  Rodgers,  11  Heisk.  757  ;  Stern  v. 
Katz,  38  Wis.  136  ;  Fibber  v.  Dautermann, 
28  Wis.  134  ;  Dickey  v.  Andros,  32  Vt. 
55  ;  Gorham  v.  Ives,  2  Wend.  534  ;  John- 
son V.  St.  Louis  Despatch  Co.,  1  Mo.  App. 
565  ;  s.  c.  65  Mo.  539  ;  Hall  v.  Adkins, 
59  Mo.  144  ;  Stitzell  v.  Reynolds,  67  Penn. 
St.  54 ;  s.  c.  59  Penn.  488  ;  Perry  v. 
Porter,  124  Mass.  338  ;  Wheatley -y.  Wallis, 
3  Har.  &  J.  1  ;  McCurry  v.  McCarry,  82 
N.  Car.  296.  To  charge  one  with  stealing 
under  circumstances  included  in  the  charge 
or  obvious  to  all  the  hearers  ( Hayes  v.  Bal), 
72  N.Y.  418)  such  as  to  show  that  a  felony 
could  not  in  law  have  been  committed  is 
not  actionable  per  se.  Wing  v.  Wing,  66 
Maine,  62  (on  demurrer)  ;  Allen  v.  Hill- 
man,  12  Pick.  101  ;  Dunnell  v.  Fiske,  11 
Met.  551  ;  Perry  v.  Porter,  124  Mass.  338  ; 
Stitzell  V.  Reynolds,  67  Penn.  St.  54  ;  s.  c. 

112 


59  Penn.  St.  488  ;  Johnson  v.  St.  Louis 
Despatch  Co.,  1  Mo.  App.  565  ;  s.  c.  65 
Mo.  539  ;  Hall  v.  Adkins,  59  Mo.  144  ; 
Hayes  v.  Ball,  72  N.  Y.  418  ;  Fawsett  v. 
Clark,  48  Md.  494  ;  McCaleb  v.  Smith,  22 
Iowa,  242  ;  Brite  v.  Gill,  2  T.  B.  Mon.  65. 
But  see  Tillman  v.  Willis,  61  Ga.  433, 
where  a  direct  charge  of  theft  with  circum- 
stances stated  which  showed  that  larceny 
could  not  be  committed  was  deemed  (being 
false)  actionable  ^^er  se,  except  perhaps 
where  the  charge  imjaited  theft  to  the 
plaintiff  because  he  had  done  the  partic- 
ular thing.  A  wi'itten  charge  even  of  the 
latter  kind  however  would  be  libel,  and 
therefore  actionable  jxr  se.  Further  than 
this  the  case  would  not  probably  be 
elsewhere  accepted  except  of  course  as 
to  the  qualifying  part  of  it.  In  one  of 
the  cases  above  cited  it  was  indeed  laid 
down  that  the  mere  fact  that  the  charge 
2?robabhj  related  to  that  of  which  larceny 
could  not  be  committed  would  not  excuse 
the  defendant  if  an  actual  charge  of  theft 
in  terms  had  been  made.  Stern  v.  Katz, 
38  Wis.  136.  It  was  however  considered 
that  if  the  facts  showed  that  larceny  could 
not  have  been  committed  and  the  language 
related  in  terms  to  such  facts  the  plaintiff 
could  not  recover  as  upon  words  actionable 
per  se.  In  another  case  it  was  held  that 
defamatory  words  imputing  to  unlearned 
bystandei's  a  crime  were  actionaWe  though 
in  law  the  words  did  not  impute  it.  Ken- 
nedy V.  Giflord,  19  Wend.  296.  See  Pal- 
mer V.  Anderson,  33  Ala.  78  ;  Carter  v. 
Andrews,  16  Pick.  1  ;  Phillips  v.  Barber, 
7  Wend.  439.     This  clearly  is  as  much  as 


CHANGES   OF    CKIME.  *  122 

remove  growing  timber  is  a  trespass  only,  not  a  larceny.  But  Holt,  C.  J.,  gave  judgment 
for  the  plaintiff.  Baker  v.  Pierce,  6  Mod.  234  ;  2  Salk.  695  ;  Holt,  654  ;  2  Ld.  Kaym. 
959.     Overruling  Mason  v.  Thompson,  Hutt,  38. 

"  Thou  hast  stolen  our  bees,  and  thou  art  a  tliief."  After  verdict  it  was  contended 
that  larceny  cannot  be  committed  of  bees,  unless  they  be  hived  ;  but  the  Court  held 
that  the  subsequent  words  "  thou  art  a  tliief"  showed  that  the  larceny  imputed  was  of 
such  bees  as  could  be  stolen.  Tibbs  v.  Smith,  3  Salk.  325  ;  Sir  Thos.  Raym.  33. 
Minors  v.  Leeford,  Cro.  Jac.  114. 

So  a  charge  of  being  "privy  and  consenting  to "  a  larceny  is  actionable.  Mot  d  ux. 
V.  Butler,  Cro.  Car.  236. 

"  He  is  a  pickpocket  ;  he  picked  my  pocket  of  my  money,"  was  once  held  an  insuf- 
ficient charge  of  larceny.     Watts  v.  Rymes,  2  Lev.  51  ;  1  Ventr.  213  ;  3  Salk.  325. 

But  now  this  would  clearly  be  held  sufficient.  Baker  v.  Pierce,  siqjm.  Stebbiiig 
V.  AVarner,  11  Mod.  255. 

*  Receiving  Stolen  Goods.  J-^'^ 

To  say  "  I  have  been  robbed  of  three  dozen  winches;  you  bought  two,  one  at  3s., 
one  at  2s. ;  you  knew  well  when  you  bought  them  that  they  cost  me  three  times  as 
much  making  as  you  gave  for  them,  and  that  they  could  not  have  been  honestly  come 
by,"  is  a  sufficient  charge  of  receiving  stolen  goods,  knowing  them  to  have  been  stolen. 

[An  indictment  which  merely  alleged  that  the  prisoner  knew  the  goods  were  not 
honestly  come  by  would  be  bad.  R.  v.  Wilson,  2  Mood.  C.  C.  52.]  Alfred  v.  Farlow, 
8  Q.  B.  854  ;  15  L.  J.  Q.  B.  258  ;  10  Jur.  714  ;  Clarke's  Case  de  Dorchester,  2  RoUe's 
Rep.  136  ;  King  v.  Bagg,  Cro.  Jac.  331. 

Iiigami/. 

Mrs.  Heming  was  sister  to  Mr.  Alleyne.  The  defendant  said  :  —  "It  has  been 
ascertained  beyond  all  doubt  that  Mr.  Alleyne  and  Mrs.  Heming  are  not  brother  and 
sister,  but  man  and  wife."  Held  that  it  was  open  to  the  jury  to  construe  this  as  a 
charge  of  bigamy,  as  well  as  of  incest.     Heming  and  wife  v.  Power,  10  M.  &.  W.  564. 

can  be  said,  so  far  as  authority  is  concerned,  other  hand  it  is  held  by  the  same  court  that 
though  there  is  good  sense  in  it.  Thus  the  words  "I  have  seen  women  steal  yarn 
then  to  charge  theft  of  the  common  property  before  "  are  not  actionable  2^<^'>'  se  without 
upon  a  known  co-tenant  is  held  not  action-  a  colloquium  or  its  equivalent.  Hart  v. 
able  per  se  ;  there  could  not  be  larceny  in  Coy,  40  Ind.  553.  It  is  not  necessary  to 
such  a  case.  Carter  2?.  Andrew,  16  Pick.  1;  charge  a  particular  theft.  McXamara  «. 
Stone  V.  Clark,  21  Pick.  51,  53  ;  Rodgers  Shannon,  8  Bush,  557  ;  Plogg  v.  AVilson, 
V.  Rodgers,  11  Heisk.  757.  So  of  charging  1  Xott  &  M.  216  ;  Fisher  v.  Rottereau,  2 
a  person  with  stealing  windows  from  a  McCord,  189.  And  a  charge  of  larceny  in 
house.  Wing  v.  Wing,  66  Maine,  62.  Or  law  is  of  course  to  be  taken  as  prima  facie 
with  robbing  a  town.  McCarty  v.  Barrett,  defamatory.  Hayes  v.  Ball,  72  N.  Y.  418  ; 
12  Minn.  494.  But  the  fact  that  the  per-  Philips  v.  Barber,  7  Wend.  439.  It  may 
son  charged  could  not  be  punished  is  no  however  be  so  explained  as  to  show  that 
exctise.  Stewart  v.  Howe,  17  111.  71.  it  was  not  intended  or  understood  in  a  de- 
Evidence  of  a  charge  of  deception  and  famatory  sense.  Quinn  v.  O'Gara,  2  E.  D. 
fraud  will  not  support  an  allegation  of  a  Smith,  388  ;  Ayres  v.  Grider,  15  111.  37  ; 
charge  of  larceny.  Perry  v.  Porter,  124  McKee  v.  Ingalls,  5  111.  30.  That  the 
Mass.  338.  To  charge  one  with  belonging  charge  is  of  the  theft  of  something  of  small 
to  a  "  gang  of  thieves,"  or  with  "always  value  appears  to  be  immaterial  on  the 
keeping  a  set  of  thieves  about  him  to  steal  question  of  liability.  See  Redway  y.Gray, 
for  him "  however  is  actionable  per  se.  31  Vt.  292. 
Porter  v.   Choen,    60   Ind.   338.     On  the 

8  113 


123 


CONSTEUCTIOX  AND   CERTAINTY. 


Perjury. 

"You  are  forsworn"  without  more,  is  insufficient,  (cr)  Stanhope  v.  Blith  (1585), 
4  Eep.  15  ;  Holt  v.  Scholefield,  6  T.  R.  691  ;  Hall  v.  Weedon,  8  D.  &  R.  140. 

But  to  say  they  " did  not  scruple  to  turn  affidavit-men,"  is  sufficient.  Roach  «. 
Reed  and  Huggonson  (1742),  2  Atk.  469  ;  2  Dick.  794. 


{a)  To  impute  the  crime  of  perjury  the 
offence  must  in  this  country  as  well  as  in 
Eughiud  be  charged  in  the  legal  sense.  It 
is  not  enough  for  example  to  say  "  You 
swore  a  lie  ;  "  that  alone  does  not  charge 
perjury  in  contemplation  of  law.  Kimmis 
V.  Stiles,  44  Vt.  351  ;  Hutts  v.  Hutts,  62 
Ind.  21  ;  Dorsett  v.  Adams,  50  hid.  129  ; 
Cummins  v.  Butler,  3  Blackf.  190  ;  Shin- 
loub  V.  Ammerman,  7  Ind.  347  ;  Barger  2;. 
Barger,  18  Penn.  St.  489  ;  Knight  r.  Sharp, 
24  Ark.  602;  Horn  v.  Foster,  19  Ark. 
346  ;  Small  v.  Clewley,  60  Maine,  262 ; 
Patterson  v.  Wilkinson,  55  Maine,  42 ; 
Emery  v.  Prescott,  54  Maine,  389  ;  Rob- 
ertson V.  Lea,  1  Stewt.  141  ;  Shroyer  v. 
Miller,  3  W.  Va.  158  ;  Hogan  v.  Wilmo- 
reth,  16  Gratt.  82  ;  McAnally  v.  Williams, 
3  Sueed,  26  ;  Ward  v.  Clark,  2  Johns.  10  ; 
Stafford  V.  Green,  1  Johns.  505  ;  Muchler  v. 
MuUiollin,  Hill  &  D.  263  ;  Dayton  v.  Rock- 
well, 11  Wend.  140  ;  Lewis  v.  Soule,  3 
Mich.  514.  See  however  Brace  ?;.  Brink,  33 
Jlich.  91 ;  Rue  v.  Jlitchell,  2  Dall.  58.  Nor 
is  it  enough  to  say  "  You  swore  a  false  oath 
against  me  in  Squire  Jamison's  court." 
Ward  V.  Clark,  supra.  But  see  Brown  v. 
Hanson,  53  Ga.  632.  That  is,  such  words 
alone  are  not  sufficient  to  constitute  an 
imputation  of  perjury.  With  suitable 
averments  however  they  and  even  the 
first-mentioned  words  may  be  made  suffi- 
cient. Cannon  v.  Phillips,  2  Sneed,  185  ; 
Ward  V.  Clark,  supra  ;  Spooner  v.  Keeler, 
51  N.  Y.  527  ;  McClaughry  v.  Wetmore, 
6  Johns.  82  ;  Mower  v.  Watson,  11  Vt. 
536  ;  Cole  v.  Grant,  18  N.  J.  327. 

In  those  cases  in  which  perjury  in  teiTns 
is  charged,  as  "  You  have  committed  per- 
jui'v,"  or  in  which  by  reasonable  interpre- 
tation perjur}'  in  contemplation  of  law  is 
charged,  as  ' '  You  swore  falsely  on  the 
trial  of  A.  B.,  and  you  knew  you  did,"  it 
is  only  necessary  for  the  plaintiff  to  allege 
the  ])ublication  of  the  words  to  make  out  a 
prima  facie  case  ;  he  need  not  allege  the 
jurisdiction  of  the  court  even  when  an  in- 
ferior tribunal,  or  the  materiality  of  the 

114 


evidence.  Perjury  in  the  legal  sense  im- 
plies both.  Power  1;.  Price,  16  Wend.  500  ; 
Coons  V.  Robinson,  3  Barb.  625  ;  Hopkins 
V.  Smith,  ib.  599  ;  Jacobs  v.  Fyler,  3  Hill, 
572 ;  Bullock  v.  Koon,  9  Cowen,  30 ; 
Spooner  v.  Keeler,  51  N.  Y.  527  ;  Niven  v. 
Munn,  13  Johns.  48  ;  Dalryraplei?.  Lofton, 
2  McMull.  112  ;  Pugh  v.  Neal,  4  Jones, 
367 ;  Hall  v.  Montgomery,  8  Ala.  510. 
See  Cass  v.  Anderson,  33  Vt.  182  ;  Cum- 
mins V.  Smith,  2  Serg.  &  R.  440  ;  Whit- 
sell  V.  Lennon,  13  Ind.  535  ;  Dorsett  v. 
Adams,  50  Ind.  129  ;  Wilson  v.  Harding, 
2  Blackf.  241  ;  Canterbury  v.  Hill,  4  Stewt. 
&  P.  224  ;  Harris  v.  Purdy,  1  Stewt.  231  ; 
Crookshank  v.  Gray,  20  Johns.  344  ;  Jones 
V.  Marr,  11  Humph.  214  ;  Sharpe  v.  AVil- 
hite,  2  Humph.  434.  Where  however  the 
words  of  themselves  do  not  constitute  a 
charge  of  perjury  in  law  the  plaintiff  must 
aver  and  prove  such  facts  as  make  them  con- 
stitute perjury  (unless  he  can  prove  special 
damage) ;  and  this  will  perhaps  require  him 
to  allege  and  prove  that  the  words  were 
spoken  in  the  course  of  the  trial  of  a  cause 
(as  before  the  grand  jury)  pending  in  a 
court  of  competent  jurisdiction.  Dorsett  v, 
Adams,  50  Ind.  129  ;  Cannon  v.  Phillips,  2 
Sneed,  185.  Secus  by  statute  in  Illinois. 
Harbison  1).  Shook,  41  111.  141  ;  Sanfordt*. 
Gaddis,  13  111.  329  ;  Wolbrecht  v.  Baum- 
garten,  26  111.  291.  In  reality  the  burden 
rests  always  upon  the  plaintiff  of  showing 
jurisdiction  and  materiality,  since  these  are 
necessary  to  constitute  perjury,  but  he 
sustains  that  burden  by  proving  a  charge 
oi  perjury.  And  perhaps  it  will  be  enough 
even  in  other  cases  to  prove  that  the  words 
were  spoken  of  a  cause  in  a  judicial  tribu- 
nal, for  then  it  may  reasonabl}'  be  presumed 
•pHmA  fade,  that  the  court  had  jurisdiction 
though  it  be  an  inferior  tribunal.  See 
Niven  v.  Munn,  13  Johns.  48  ;  Dalrymple 
V.  Lofton,  2  McMull.  112  ;  Harris  v.  Pur- 
dy, 1  Stewt.  231.  It  appears  at  all  events 
to  be  unnecessary  in  such  cases  as  those  just 
mentioned  (where  special  averments  are 
required)  to  allege  that  the  evidence  given 


CHARGES   OF   CRIME. 


123 


"Thou  art  forsworn  in  a  court  of  record,  and  that  I  will  prove  !"  was  held  suffi- 
cient ;  though  it  was  argued  after  verdict  that  he  might  only  have  been  talking  in  the 


was  material,  even  though  the  trial  was 
before  an  inferior  court.  The  fact  that 
evidence  given  in  court  is  generally  mate- 
rial is  enough  to  raise  a  presumption  that 
it  was  material  in  the  particular  case. 
Spooner  v.  Keeler,  51  N.  Y.  527  ;  Dorsett 
V.  Adams,  50  Ind.  129  ;  Whitsell  v.  Len- 
non,  13  Ind.  535  ;  Wilson  v.  Harding,  2 
Blackf.  241.  But  see  Ross  v.  Rouse,  1 
Wend.  475.  The  presumption  of  materi- 
ality may  however  be  overcome  by  the 
defendant.  Horn  v.  Foster,  19  Ark.  340. 
This  is  implied  if  not  stated  in  all  of  the 
cases.  So  too  in  regard  to  the  presump- 
tion that  the  words  were  spoken  in  a  court 
of  competent  jurisdiction  where  the  words 
charge  perjury  in  terms  or  in  legal  con- 
templation. Hamm  v.  Wickline,  26  Ohio 
St.  81.  So  also  it  may  be  shown  that  the 
oath  was  illegally  imposed.  Burkett  v. 
McCarty,  10  Bush,  758.  Or  that  the  tri- 
bunal was  not  one  possessed  of  judicial 
functions.  Pegi'am  v.  Stoltz,  76  N.  Car. 
349  ;  Dalton  v.  Higgins,  34  Ga.  433  ;  Hall 
V.  Montgomery,  8  Ala.  510.  A  distinc- 
tion has  sometimes  been  taken  between  a 
general  charge  of  perjury  and  a  charge  of 
perjury  as  to  a  particular  fact ;  the  plain- 
tiff being  thought  bound  in  a  case  of  the 
latter  kind  to  prove  expressly  the  materi- 
ality of  the  statement.  Power  v.  Price, 
12  Wend.  500  ;  Cannon  v.  Phillips,  2 
Sneed,  185.  But  the  distinction  is  not 
well  founded.  Power  v.  Price,  16  Wend. 
450.  The  question  of  the  materiality  of 
the  evidence,  it  may  be  noticed,  is  a  ques- 
tion of  law.  lb.  Of  course  even  the 
word  "perjury"  or  its  legal  equivalent 
may  be  shown  to  have  been  used  in  a  non- 
actionable  way.  Pugh  v.  McCarty,  40  Ga. 
444. 

With  regard  to  justifications  of  the  truth 
of  the  charge  it  has  sometimes  been  held 
that  inasmuch  as  the  defendant  now  de- 
clares that  his  charge  is  true  he  must  as 
in  the  case  of  an  indictment  prove  all 
facts  necessary  to  make  out  a  case  of  per- 
jury in  the  legal  sense  ;  a  judicial  proceed- 
ing, an  oath  administered,  materialitj'  of 
the  evidence  and  its  falsity.  Hopkins  v. 
Smith,  3  Barb.  599.  See  Downey  v.  Dil- 
lon, 52  Ind.  442,  449  ;  Mull  v.  McKnight, 


67  Ind.  535,  538  ;  McGough  v.  Rhodes, 
12  Ark.  625  ;  Bullock  v.  Koon,  9  Cowen, 
30.  The  sufficient  answer  to  this  is  that 
the  plaintiff  has  himself  already  proved  all 
of  that  except  of  course  the  falsity  of  the 
evidence.  If  the  words  are  actionable  of 
themselves,  that  is,  if  standing  alone  they 
impute  perjury  in  law,  it  is  shown  i)riuui 
fade,  aswe  have  seen,  that  they  were  spoken 
(on  oath)  before  a  court  of  competent  juris- 
diction and  were  material ;  and  if  the  words 
were  not  actionable  per  se  the  plaintiff 
must  have  expressly  averred  and  proved 
aliunde  all  the  facts  necessary  to  make  the 
charge  one  of  perjury  in  the  legal  sense. 
It  cannot  be  necessary  for  the  defendant  to 
go  over  the  ground  again  in  either  of  these 
cases.  It  is  enough  for  him  to  show  that 
the  charge  was  true  ;  that  is,  that  those 
words  which  the  plaintiff  has  already  shown 
to  have  been  sworn  before  a  court  in  the 
manner  stated  stqyra  were  true.  All  that 
remains  therefore  for  the  defendant  to 
prove  is  that  the  evidence  in  question  was 
corruptly  given,  i.e.  with  knowledge  of  its 
falsity.  Comp.  Chandler  v.  Robison,  7 
Ired.  480  ;  Sloan  v.  Gilbert,  12  Bush,  51  ; 
Spooner  v.  Keeler,  51  N.  Y.  527.  In  Hop- 
kins V.  Smith,  3  Barb.  599,  it  is  held  un- 
necessary to  prove  that  the  evidence  was 
known  to  be  false  ;  to  prove  it  false  was 
thought  enough.  Scd  qucere.  There  is 
no  proper  analogy  between  the  situation  of 
a  defendant  justifying  a  charge  of  perjury 
and  the  State  prosecuting  the  person 
charged.  The  State  must  prove  every- 
thing necessary  to  constitute  perjury,  be- 
cause the  fects  have  not  yet  appeared  to 
the  court.  Whether  the  defendant  in  jus- 
tifying must  establish  the  truth  beyond  a 
reasonable  doubt,  as  he  is  required  to  do 
by  some  of  the  courts  (Hutts  v.  H\itts,  62 
Ind.  214  ;  confm,  Sloan  v.  Gilbert,  12 
Bush,  51),  is  another  question  altogether  ; 
concerning  which,  see  post,  p.  178,  note. 

A  justice  of  the  peace  may  have  an  ac- 
tion of  slander  for  being  charged  with  per- 
jury in  deciding  a  case  before  him.  Gove 
V.  Blethen,  21  Minn.  80.  And  it  cannot 
be  necessary  for  him  to  allege  his  own  ju- 
risdiction in  the  cause  where  the  charge 
amounts  to  perjury  in  law. 

115 


*  123  CONSTRUCTION  AND   CERTAINTY. 

court-liouse  and  so  forsworn  liiniself ;  but  the  Court  held  that  the  words  would  natu- 
rally mean  forsworn  while  giving  evidence  in  some  judicial  proceeding  in  a  court  of 
record.     Ceely  v.  Hoskins,  Cro.  Car.  509. 

False  Pretences. 

The  words  "  He  has  defrauded  a  mealman  of  a  roan  horse,"  held  not  to  imply  a 
criminal  act  of  fraud  ;  as  it  is  not  stated  that  the  mealman  was  induced  to  part  with 
his  property  by  means  of  any  false  pretence.     Richardson  v.  Allen,  2  Chit.  657. 

Attempt  to  Commit  a  Felony. 

The  following  words  were  held  sufficient  :  — 

"He  sought  to  murder  me  and  I  can  prove  it."     Preston  v.  Finder,  Cro.  Eliz.  308. 
"  She  would  have  cut  her  husband's  throat  and  did  attempt  it."     Scot  et  ux.  v. 
Hilliar,  Lane,  98  ;  1  Vin.  Abr.  440. 

*  1 24     *  The  following  insufficient  :  — 

"Thou  wouldst  have  killed  me."  Dr.  Poe's  Case,  cited  in  Murrey's  Case, 
2  Buls.  206  ;  1  Vin.  Abr.  440. 

"Sir  Harbert  Croft  keepeth  men  to  rob  me."  Su-  Harbert  Croft  v.  Brown,  3 
Buls.  167. 

"  He  would  have  robbed  me."     Stoner  v.  Audely,  Cro.  Eliz.  250. 

For  here  no  overt  act  is  charged,  and  mere  intention  is  not  criminal. 

Other  instances  of  a  criminal  charge  indirectly  made  will  be  found  in  Snell  v.  Web- 
ling,  2  Lev.  150  ;  1  Vent.  276  ;  Clerk  v.  Dyer,  8  Mod.  290  ;  Woolnoth  v.  Meadows,  5 
East,  463  ;  2  Smith,  28. 

Where  words  clearly  refer  to  the  plaintiff's  office  and  his  con- 
duct therein,  or  otherwise  clearly  touch  and  injure  him  therein, 
it  is  unnecessary  that  the  defendant  should  expressly  name  his 
office  or  restrict  his  words  thereto  ;  it  shall  be  intended  that  he 
was  speaking  of  him  in  the  way  of  his  office  or  trade. 

Illustrations. 

To  say  of  a  clerk,  "He  cozened  his  master"  is  actionable,  though  the  defendant 
did  not  expressly  state  that  the  cozening  was  done  in  the  execution  of  the  clerk's  official 
duties  ;  that  will  be  intended.  Reignald's  Case  (1640),  Cro.  Car.  563  ;  Reeve  v.  Hol- 
gate  (1672),  2  Lev.  62. 

To  say  of  a  trader,  "  he  has  been  arrested  for  debt "  is  actionable,  though  no  express 
reference  be  made  to  his  trade  at  the  time  of  publication  ;  for  such  words  must  neces- 
sarily affect  his  credit  in  his  trade.  Jones  v.  Littler,  7  M.  &  W.  423  ;  10  L.  J. 
Ex.  171. 

It  is  not  necessary  that  the  defendant  should  in  so  many  words 
expressly  state  the  plaintiff  lias  committed  a  particular  crime. 
So,  where  a  charge  is  made  against  a  tiader,  it  need  not  be  con- 
veyed in  positive  and  direct  language.  Any  words  which  dis- 
tinctly assume  or  imply  the  plaintiff's  guilt,  or  raise  a  strong 
116 


INDIKECT   IMPUTATIONS.  *  124 

suspicion  of  it  in  the  minds  of  the  hearers,  are  sufficient.     But 
words  merely  imputing  to  the  plaintiff  a  criminal  intention 
or  *  design  are  not  actionable,  so  long  as  no  criminal  act    *  125 
is  directly  or  indirectly  assigned.     So,  too,  words  of  mere 
suspicion,  not  amounting  to  a  charge  of  felony,  are  not  actionable. 

Illustrations. 

The  following  words  have  been  held  to  convey  an  imputation  with  sufBcient  certainty 
and  precision  :  — 

"  I  believe  all  is  not  well  with  Daniel  Vivian;  there  be  many  merchants  who  have 
lately  failed,  and  I  expect  no  otherwise  of  Daniel  Vivian;  "  for  this  is  a  charge  of  pres- 
ent pecuniary  embarrassment.     Vivian  v.  Willet,  3  Salk.  326;  Sir  Thos.  Eaym.  207. 

"Two  dyers  are  gone  off,  and  for  aught  I  know  Harrison  will  be  so  too  within  this 
twelvemonth."     Harrison  v.  Thornborough,  10  Slod.  196;  Gilb.  C'as.  114. 

"  He  has  become  so  inflated  with  self-importance  by  the  few  hundi-eds  made  in  my 
service  —  God  only  knows  whether  honestly  or  otherwise;  "  for  this  is  an  insinuation  of 
embezzlement.     Clegg  t^.  Laft'er,  3  Moore  &  Sc.  727;  10  Bing.  250. 

"  I  think  in  my  conscience  if  Sir  John  might  have  his  will,  he  would  kill  the  kin"  ;  " 
for  this  is  a  charge  of  compassing  the  king's  death.  Siduam  v.  Mayo,  1  Roll.  Eep. 
427;  Cro.  Jac.  407;  Peake  v.  Oldham,  Cowp.  275;  2  "Wm.  Bl.  959,  ante,  p.  121. 

To  state  that  criminal  proceedings  are  about  to  be  taken  against  the  plaintiff  {e.g. 
that  the  Attorney-General  had  directed  a  certain  attorney  to  prosecute  him  for  perjury), 
is  actionable,  although  the  speaker  does  not  expressly  assert  that  the  plaintitf  is  guilty 
of  the  charge.  Roberts  v.  Camden,  9  East,  93;  Tempest  v.  Chambers,  1  Stark.  67; 
Bell  V.  Byrne,  13  East,  554;  Contra  Harrison  v.  King,  4  Price,  46;  7  Taunt.  431;  1  B. 
&  Aid.  161. 

So  where  the  defendant  on  hearing  that  his  barns  were  burnt  down,  said,  "  I  cannot 
imagine  who  it  should  be  but  the  Lord  Sturton."  Lord  Sturton  v.  ChafBn  (1563), 
Moore,  142. 

But  where  the  defendant  said,  "  I  have  a  suspicion  that  you  and  B.  have  robbed  my 
house,  and  therefore  I  take  you  into  custody,"  the  jury  found  that  the  words  did  not 
amount  to  a  direct  charge  of  felony,  but  only  indicated  what  was  passing  in  defendant's 
mind.  Tozeri;.  Mashlbrd,  6  Ex.  539;  20  L.  J.  Ex.  225;  Williams  v.  Gardiner,  1  M. 
&  W.  245;  1  Tyr.  &  Gr.  578. 

No  action  lies  for  such  words  as  "  Thou  deservest  to  be  hanged,"  for  here  no  fact  is 
asserted  against  the  plaintiff.  Hake  v.  Molton,  Roll.  Abr,  43;  Cockaine  v.  Hopkins, 
2  Lev.  214. 

But  it  is  actionable  to  say:  —  "I  am  of  opinion  that  such  a  Privy  Councillor 
*is  a  traitor,"  or  "  I  thinksueh  a  judge  is  corrupt."    Per  Wyndham  and  Scroggs,     *  126 
JJ.,  and  North,  C.J.,  in  Lord  Townshend  v.  Dr.  Hughes,  2  Mod.  166. 

So  too  if  the  charge  incidentally  slips  into  a  conversation  on  another  matter,  an  ac- 
tion lies;  as  w^here  the  defendant  said: —  "Mr.  Wingfield,  you  never  thought  well  of 
me  since  Graves  did  steal  my  lamb  ;"  and  it  was  lield  that  Graves  could  sue.  Graves' 
Case,  Cro.  Eliz.  289. 

Or,  "  I  dealt  not  so  unkindly  with  you,  when  you  stole  my  sack  of  corn."  Cooper 
V.  Hawkeswell,  2  Mod.  58. 

A  libellous  charge  maybe  insinuated  in  a  question  :  e.g.,  "AVe  should  be  glad  to 
know  how  many  popish  priests  enter  the  nunneries  at  Scorton  and  Dni'lington  each  week  1 

117 


*  126  CONSTRUCTION  AND   CERTAINTY. 

and  also  how  many  infants  are  born  in  them  every  year,  and  what  becomes  of  them? 
whether  the  holy  fathers  bring  them  up  or  not,  or  whether  the  innocents  are  murdered 
out  of  hand  or  not."  Alderson,  B.,  directed  the  jury  that  if  they  thought  the  de- 
fendant by  asking  the  question  meant  to  assert  the  facts  insinuated,  the  passage  was  a 
libel.     E.  V.  Gathercole,  2  Lew.  C.  C.  255. 

So  a  slander  may  be  conveyed  in  a  question  and  answer  or  in  a  series  of  questions 
and  answers.  Gaiuford  v.  Tuke  (1620),  Cro.  Jac.  536;  Haywood  v.  Nayler  (1636),  1 
Roll.  Abr.  50;  Ward  r.  Reynolds  (1714),  cited  Cowp.  278. 

A  libellous  charge  may  be  sufficiently  conveyed  by  a  mere  adjective. 

"Thou  art  a  leprous  knave."     Ta3dor  v.  Perkins,  Cro.  Jac.  144;  1  Roll.  Abr.  44. 

"  He  is  a  bankrupt  knave,"  spoken  of  a  trader.     Squire  v.  Johns,  Cro.  Jac.  585. 

"Thou  art  a  broken  fellow."     Anon.,  Holt,  652. 

"He  is  perjured,"  or  "mainsworn."     Croford  v.  Blisse,  2  Buls.  150. 

"A  libellous  journalist,"  a  phrase  which  will  be  taken  to  mean  that  the  plaintiff 
hnhituallij  publishes  libels  in  his  paper,  not  that  he  mice  published  (me  libel  merely. 
Wakley  v.  Cooke  and  Healey,  4  E.xch.  511;  19  L.  J.  Ex.  91. 

So,  if  the  plaintiff  is  obviously  only  repeating  gossip,  not  asserting  the 
charge  as  a  fact  within  his  own  knowledge. 

"I  heard  you  had   run   away"    [sc.  from  your  creditors).     Davis  v.   Lewis,  7  T. 
R.  17. 

*  127        *  "  Thou  art  a  sheep-stealing  rogue,  and  Farmer  Parker  told  me  so."     Gar- 

diner V.  Atwater,  Sayer,  265. 

"  One  told  me  that  he  heard  say  that  Mistress  Meggs  had  poisoned  her  first  husband." 
Meggs  V.  Griffith  {vcl  Griffin),  Cro.  Eliz.  400;  Moore,  408;  Read's  Case,  Cro.  Eliz.  645. 

"  Did  you  not  hear  that  C.  is  guilty  of  treason."  Per  cur.  in  Earl  of  Northampton's 
Case,  12  Rep.  134. 

2.   Certainty  as  to  the  Person  Defamed. 

The  defamatory  words  must  refer  to  some  ascertained  or  ascer- 
tainable person,  and  that  person  must  be  the  plaintiff. 

If  the  words  used  really  contain  no  reflection  on  any  particular 
individual,  no  averment  or  innuendo  can  make  them  defamatory. 

Illustratioyis. 

"  Suppose  the  words  to  be  '  a  murder  was  committed  in  A.'s  house  last  night;'  no 
introduction  can  warrant  the  innuendo  '  meaning  that  B.  committed  the  said  murder;' 
nor  would  it  be  helped  by  the  linding  of  the  jury  for  the  plaintiff.  For  the  Court  must 
see  that  the  words  do  not  and  cannot  mean  it,  and  would  arrest  the  judgment  accord- 
ingly. Id  cerhim  est,  quodcertum  reddi  jJotesV  Per  Lord  Denman,  C.J.,  in  Solomon 
V.  Lawson,  8  Q.  B.  837;  15  L.  J.  Q.  B.  257;  10  Jur.  796. 

"  If  a  man  wrote  that  all  la\vyers  were  thieves,  no  particular  lawyer  could  sue  him, 
unless  there  is  something  to  point  to  the  particular  individual."  Per  Willes,  J.,  in 
Eastwood  V.  Holmes,  1  F.  &  F.  349. 

To  assert  that  an  acceptance  is  a  forgery  is  no_  libel  on  the  drawer,  unless  it  somehow 

118 


CERTAINTY  AS  TO   THE  PERSON.  *  127 

appear  that  it  was  he  who  was  charged  with  forging  it.     Stockley  v.  Clement,  4  Bing. 
162;  12  Moore,  376. 

The  defendant  in  a  speech  commented  severely  on  the  discipline  of  the  Roman  Cath- 
olic church,  and  the  degrading  punishments  imposed  on  penitents.  He  read  from  a 
paper  an  account  given  bj'  three  policemen  of  the  severe  penance  imposed  on  a  poor  Irish- 
man. It  appeared  incidentally  from  this  report  that  the  Irishman  had  told  the  police- 
men that  his  priest  would  not  administer  the  Sacrament  to  him  till  the  penance  was 
performed.  The  plaintiff  averred  that  he  was  the  Irishman's  priest,  but  it  did  not  ap- 
pear how  enjoining  such  a  penance  on  an  Irishman  would  affect  the  character  of  a 
Pioman  Catliolic  priest.  The  alleged  libel  was  in  no  other  way  connected  with  the 
plaintiff.  He/d  no  libel,  and  no  slander,  of  the  plaintiff.  Hearne  v.  Stowell,  12  A.  & 
E.  719;  6  Jur.  458;  4  P.  &  D.  696. 

*  Though  the  words  used  may  at  first  sight  appear  only  *  128 
to  apply  to  a  class  of  individuals,  and  not  to  be  specially 
defamatoiy  of  any  particular  member  of  that  class,  still  an  action 
may  be  maintained  by  any  one  individual  of  that  class  who  can 
satisfy  the  jury  that  the  words  referred  especially  to  himself. 
The  words  must  be  capable  of  bearing  such  special  application,  or 
the  judge  should  stop  the  case.  And  there  must  be  an  averment 
in  the  Statement  of  Claim,  that  the  words  were  spoken  of  the 
plaintiff.  The  plaintiff  may  also  aver  extraneous  facts,  if  any, 
showing  that  he  was  the  person  expressly  referred  to. 

Formerly  it  was  absolutely  necessary,  as  we  have  seen,  to  overload  the 
pleadings  with  averments,  such  as,  that  the  defendant  was  talking  to  J.  S. 
about  the  plaintiff  and  about  the  plaintiff's  conduct  in  and  about  a  certain 
matter ;  and  that  in  the  course  of  such  conversation  he  spoke  of  and  con- 
cerning the  plaintiff,  and  of  and  concerning  the  said  matter,  the  words  fol- 
lowing —  that  is  to  say,  &c.  A  great  many  other  details  had  to  be  formally 
set  out  in  order  to  support  the  subsequent  brief  innuendo,  "  he  (meaning 
the  plaintiff)."  And  then,  too,  the  introductory  averments  had  to  be  prop- 
erly connected  with  the  innuendo  ;  or  their  presence  was  of  no  avail. ^ 
But  now  all  such  pitfalls  are  removed  by  Common  Law  Procedure  Act, 
1852,  s.  61.  No  such  averments  are  any  longer  necessary;  the  inmiendo 
alone  is  sufficient.  "  The  old  decisions  which  support  the  argument  that 
an  innuendo  cannot  be  allowed  to  make  persons  certain  who  were  un- 
certain before,  are  not  now  sustainable."  ^  And  the  decision  of  the  jury  on 
the  point  is  final.  After  a  verdict  for  the  plaintiff,  the  defendant  can  no 
longer  argue  that  it  does  not  sufficiently  appear  to  whom  the  wonls  relate. 

And  this  is  no  breach  of  the  rule  that  the  office  of  the  innuendo  is  to 

1  Clement  v.  Fisher,  7  B.  &  C.  459;  1  M.  &  R.  281. 

2  Per  Coltman,  J.,  in  Turner  v.  Meryweather,  7  C.  B.  251;  18  L.  J.  C.  P.  155;  13 
Jur.  683;  and  in  error,  19  L.  J.  C.  P.  10. 

119 


*  128  CONSTRUCTION  AND   CERTAINTY. 

explain  and  not  to  extend  the  sense  of  tlie  defamatory  matter.     For 

*  129    liere  the  innuendo  does  not  extend  *  the  meaning,  it  only  points 

out  the  particular  individual  to  whom  the  matter  in  itself  defamatory 
does  in  fact  apply. 

So,  if  the  words  spoken  or  written,  though  plain  in  themselves, 
apply  equally  well  to  more  persons  than  one,  evidence  may  be 
given  both  of  the  cause  and  occasion  of  publication,  and  of  all 
the  surrounding  circumstances  affecting  the  relation  between  the 
parties,  and  also  of  any  statement  or  declaration  made  by  the  de- 
fendant as  to  the  person  referred  to.  The  plaintiff  may  also  call 
at  the  trial  his  friends  or  those  acquainted  with  the  circumstances, 
to  state  that  on  reading  the  libel  they  at  once  concluded  that  it 
was  aimed  at  the  plaintiff.^  If  the  application  to  a  particular  in- 
dividual can  be  generally  perceived,  the  publication  is  a  libel  on 
him,  however  general  its  language  may  be.  "  Whether  a  man 
is  called  by  one  name,  or  whether  he  is  called  by  another,  or 
whether  he  is  described  by  a  pretended  description  of  a  class 
to  which  he  is  known  to  belong,  if  those  who  look  on  know  well 
who  is  aimed  at,  the  very  same  injury  is  inflicted,  the  very  same 
thing  is  in  fact  done,  as  would  be  done  if  his  name  and  Christian 
name  were  ten  times  repeated."  ^ 

Where  the  libel  consists  of  an  effigy,  picture,  or  caricature,  care  should 
be  taken  to  show  by  proper  innuendoes  and  averments,  the  libellous  nature 
of  the  representation  and  its  especial  reference  to  the  plaintiff.  It  is  often 
in  such  cases  difficult  for  the  plaintiff  to  prove  that  he  is  the  person  carica- 
tured. 

Illustrations. 

Words  complained  of:  —  "  We  would  exhort  the  medical  officers  to  avoid  the  traps 

set  for  thein  by  desperate  adventurers,  (innuendo,  thereby  meaning  the  plaintiff  among 

others, )  who,  participating  in  their  efforts,  would  inevitably  cover  them  with 

*  130     ridicule  and  disrepute."     The  jury  *  found  that  the  words  were  intended  to 

apply  to  the  plaintiff.     Judgment  accordingly  for  the  plaintiff.     Wakley  v. 

Healey,  7  C.  B.  591  ;  18  L.  J.  C.  P.  241. 

A  newspaper  article  imputed  that  "in  some  of  the  Irish  factories"  cruelties  were 
practised  upon  the  workpeople.  Innuendo  "  in  the  factory  of  the  plaintiffs"  who  were 
manufacturers.  The  jury  were  satisfied  that  the  newspaper  was  referring  especially  to 
the  plaintiffs'  factory,  and  found  a  verdict  for  the  plaintiffs,  and  the  House  of  Lords 
held  the  declaration  good.  Le  Fauu  and  another  v.  Malcolmson,  1  H.  L.  C.  637  ;  13 
L.  T.  61  ;  8  Ir.  L.  R.  418. 

If  asterisks  be  put  instead  of  the  name  of  the  party  libelled,  it  is  sufficient  that  those 

1  Bourke  v.  Warren,  2  C.  &  P.  307  ;  Broome  v.  Gosden,  1  C.  B.  728. 

^  Per  Lord  Campbell,  C.J.,  in  Le  Fanu  and  another  v.  Malcolmson,  1  H.  L.  C.  668. 

120 


CERTAINTY  AS  TO  THE  PERSON.  *  130 

who  know  the  plaintiff  should  be  able  to  gather  from  the  libel  that  he  is  the  person 
meant ;  it  is  not  necessary  that  all  the  world  should  understand  it,  so  long  as  the 
meaning  of  the  paragraph  is  clear  to  the  plaintiff's  acquaintances.  Bourke  v.  Warren, 
2  C.  &  P.  307. 

Some  libellous  verses  were  written  about  "  L y,  the  Bum  ;"  the  Court  was  satis- 
fied in  spite  of  the  finding  of  the  jury  that  the  words  related  to  the  plaintiff,  a  sheriff's 
officer.     Levi  v.  Milne,  4  Bing.  195  ;  12  Moore,  418. 

"All  the  libellers  of  the  kingdom  know  now  that  printing  initial  letters  will  not 
serve  the  turn,  for  that  objection  has  been  long  got  over."  Per  Ld.  Hardwicke  in 
Roach  V.  Read  and  Huggonson  (1742),  2  Atk.  470  ;  2  Dick.  794. 

There  appeared  in  Mist's  Weekly  Journal  an  account  professedly  of  certain  intrigues, 
&c.  at  the  Persian  Court,  really,  at  the  English.  The  late  King  George  I.  was  de- 
scribed under  the  name  of  "Merewits,"  George  II.  appeared  as  "Esreff,"  the  Queen  as 
"Sultana,"  whilst  a  most  engaging  portrait  was  drawn  of  the  Pretender  under  the  name 
of  "  Sophi."  It  was  objected  on  behalf  of  the  prisoner  that  there  was  no  evidence  that 
the  author  intended  his  seemingly  harmless  tale  to  be  thus  interpreted  and  applied  : 
but  the  Court  held  that  they  nuist  give  it  the  same  meaning  as  the  generality  of  readers 
would  undoubtedly  put  upon  it.     R.  v.  Clerk  (1729),  1  Barnard,  304. 

If  the  defendant  says  "A.  or  B."  comnutted  such  a  felony,  both  A.  and  B.,  or 
either  of  them  can  sue,  for  both  are  brought  into  suspicion.     Anon.,  1  Roll.  Abr.  81. 

In  Falkner  v.  Cooper  (1678),  Carter,  55,  the  Court  was  divided  on  this  point. 
"You  or  Harrison  hired  one  Bell  to  forswear  himself."  Harrison  can  sue.  Harrison 
V.  Thornborough,  10  Mod.  196  ;  Gilb.  Cas.  in  Law  and  E(i.  114. 

If  a  man  says  "My  brother,"  or  "my  enemy,"  is  perjured,  and  hath  only  one 
brother  or  one  enemy,  such  brother  or  enemy  can  sue  ;  but  if  he  says  "One  of  my 
brothers  is  perjured,"  and  he  hath  several  brothers,  no  one  of  them  can  sue  [without 
special  circumstances  to  show  to  which  one  he  referred].  Jones  v.  Davers,  Cro.  Eliz. 
497  ;  1  Roll.  Abr.  74  ;  Wisem.an  v.  Wiseman,  Cro.  Jac.  107. 

*So  if  a  man  says  to  the  plaintiff's  servant,  "Thy  master  Brown  hath  *  131 
robbed  me,"  Brown  can  sue;  for  it  shall  not  be  intended  that  the  person  ad- 
dressed had  more  than  one  master  of  the  name  of  Brown.  So  if  the  defendant  had 
said,  "Thy  master,"  simplicitcr ;  or  to  a  son,  "Thy  father,"  to  a  wife,  "Thy  hus- 
band." Per  Haughton,  J.,  in  Lewes  v.  Walter  (1617),  3  Bulstr.  226  ;  Brown  v.  Low 
or  Lane,  Cro.  Jac.  443  ;  1  Roll.  Abr.  79  ;  Waldegrave  v.  Agas,  Cro.  Eliz.  191. 

But  if  the  defendant  said  to  a  master,  "One  of  thy  servants  hath  robbed  me,"  in 
the  absence  of  special  circumstances  no  one  could  sue  ;  for  it  is  not  apparent  who  is  the 
person  slandered.  So  where  a  party  in  a  cause  said  to  three  men  who  had  just  given 
evidence  against  him:  "One  of  you  three  is  perjured,"  no  action  lies.  Sir  John 
Bourn's  Case,  cited  Cro.  Eliz.  497. 

Where  the  defendant  said  to  his  companion  B.  :  —  "He  that  goeth  before  thee  is 
perjured,"  the  plaintiff  can  sue,  if  he  aver  and  prove  that  he  was  at  that  moment  walk- 
ing before  B.     Aish  v.  Gerish,  1  Roll.  Abr.  81. 

.  A  libel  was  published  on  a  "diabolical  character,"  who,  "like  Polyphemus,  the 
man-eater,  has  but  one  eye,  and  is  well  known  to  all  persons  acquainted  with  the  name 
of  a  certain  noble  circumnavigator."  The  plaintiff  had  but  one  eye,  and  his  name  was 
I'Anson  ;  so  it  was  clear  that  he  was  the  person  referred  to.  I'Anson  v.  Stuart,  1 
T.  R.  748  ;  2  Smith's  Lg.  Cas.  (6th  ed.),  57,  [omitted  in  7th  and  8th  eds.]  ;  Fleetwood 
V.  Curl,  Cro.  Jac.  557;  Hob.  268. 

Words  defamatory  of  A.  may  in  some  cases  be  also  indirectly 

defamatory  of  B. 

121 


131  CONSTRUCTION  AND   CEETAINTY. 


Illustrations. 

Where  a  married  man  was  called  "  cuckold  "  in  the  City  of  London,  his  wife  could 
sue  ;  for  it  was  tantamount  to  calling  her  "whore."  Vicars  v.  Worth,  1  Stra.  471  ; 
Hodgkins  et  ux.  v.  Corbet  et  tcx.,  1  Stra.  545. 

Slander  addressed  to  the  plaintiff's  wife :  —  *'  You  are  a  nuisance  to  live  beside  of. 
You  are  a  bawd  ;  and  your  house  is  no  better  than  a  bawdy-house."  Held  that  the 
plaintiff  could  maintain  the  action  without  joining  his  wife,  and  without  proving  special 
damage  ;  because  if  in  fact  his  wife  did  keep  a  bawdy-house,  the  plaintiff  could  be  in- 
dicted for  it.     Huckle  v.  Reynolds,  7  C  B.  (N.  S.)  114. 

Where  the  words  prima  facie  apply  only  to  a  thing^  and 

*  132    not  to  a  person,  still  if  the  owner  of  the  thing  can  *  show 

that  the  words  substantially  reflect  upon  him,  he  may  sue, 

without  giving  proof  of  special  damage   and   without  proving 

express  malice. 

Illustratio7i. 

To  write  and  publish  that  plaintiff's  ship  is  unseaworthy  and  has  been  sold  to  the 
Jews  to  carry  convicts,  is  a  libel  upon  the  plaintiff  in  the  way  of  his  business,  as  well 
as  upon  his  ship.  Ingram  v.  Lawson,  6  Bing.  N.  C.  212  ;  4  Jur.  151  ;  9  C.  &  P.  326  ; 
8  Scott,  471 ;  Solomon  v.  Lawson,  8  Q.  B.  823 ;  15  L.  J.  Q.  B.  253  ;  10  Jur.  796,  and 
other  cases  cited,  ante,  pp.  32-34. 

122 


*  CHAPTER  IV.  *133 

SCANDALUM  MAGNATUM. 

By  virtue  of  certain  ancient  statutes,  words  which  would  not  be 
actionable,  if  spoken  of  an  ordinary  subject,  are  actionable,  if 
spoken  of  a  peer  of  the  realm,  or  of  a  judge,  of  any  of  the  great  offi- 
cers of  the  Crown,  even  without  proof  of  any  special  damage,  (a) 

It  has  been  maintained  that  this  privilege  existed  at  the  common  law, 
independently  of  any  statute ;  and  passages  are  generally  cited  from  Ee- 
ports  in  support  of  this  opinion.  But  in  the  passages  relied  on,  Lord  Coke 
appears  to  me  to  be  referring  to  criminal,  and  not  to  civil  proceedings.  And 
such  a  distinction  between  nobles  and  commoners  appears  to  me  ahen  to 
the  spirit  of  our  common  law. 

The  following  are  the  statutes  referred  to  :  —  "  Forasmuch  as 
there  have  been  oftentimes  found  in  the  country  devisors  of  tales, 
whereby  discord,  or  occasion  of  discord,  hath  many  times  arisen  be- 
tween the  King  and  his  people,  or  great  men  of  this  realm  ;  for  the 
damage  that  hath  and  may  thereof  ensue  ;  it  is  commanded,  that 
from  henceforth  none  be  so  hardy  to  tell  or  publish  any  false  news 
or  tales,  whereby  discord,  or  occasion  of  discoi-d  or  slander,  may 
grow  between  the  King  and  his  people,  or  the  great  men  of  the 
realm  ;  and  he  that  doth  so,  shall  be  taken  and  kept  in  prison, 
until  he  hath  brought  him  into  the  court,  which  was  the  first  au- 
thor of  the  tale."  ^ 

*  "  Item,  of  devisors  of  false  news,  and  of  horrible  and  *  134 
false  lyes,  of  prelates,  dukes,  earls,  barons,  and  other 
nobles  and  great  men  of  the  realm,  and  also  of  the  chancellor, 
treasurer,  clerk  of  the  privy  seal,  steward  of  the  King's  house, 
justices  of  the  one  bench  or  of  the  other,  and  of  other  great  offi- 
cers of  the  realm,  of  things  which  by  the  said  prelates,  lords, 
nobles   and   officers   aforesaid,  were    never   spoken,    done,    nor 

1  3  Edw.  I.     Stat.  "Westminster  I.  c.  34. 

(a)  Apart  from  treasonable  language  is  no  law  of  this  kind  in  the  United 
and  language  aflfecting  one  in  office  there     States. 

123 


*  134  SCANDALXJIVI  ISIAGNATUM. 

thought,  in  great  slander  of  the  said  prelates,  lords,  nobles,  and 
officers,  whereby  debates  and  discords  might  arise  betwixt  the 
said  lords,  or  between  the  lords  and  the  commons,  which  God 
forbid,  and  whereof  great  peril  and  mischief  might  come  to  all 
the  realm,  and  quick  subversion  and  destruction  of  the  said  realm, 
if  due  remedy  be  not  provided  :  It  is  straitly  defended  upon 
grievous  pain,  for  to  eschew  the  said  damages  and  perils,  that 
from  henceforth  none  be  so  hardy  to  devise,  speak,  or  to  tell  any 
false  news,  lyes,  or  such  other  false  things,  of  prelates,  lords,  and 
of  other  aforesaid,  whereof  discord  or  any  slander  might  rise 
within  the  same  realm  ;  and  he  that  doth  the  same  shall  incur 
and  have  the  pain  another  time  ordained  thereof  by  the  Statute 
of  Westminster  the  First,  which  will,  that  he  be  taken  and  im- 
prisoned till  he  have  found  him  of  whom  the  word  was  moved."  ^ 
"  Item,  whereas  it  is  contained,  as  well  in  the  Statute  of  West- 
minster the  First,  as  in  the  statute  made  at  Gloucester,  the  second 
year  of  the  reign  of  our  lord  the  King  that  now  is,  that  none  be 
so  hardy  to  invent,  to  say,  or  to  tell  any  false  news,  lies,  or  such 
other  false  things,  of  the  prelates,  dukes,  earls,  barons,  and  other 
nobles  and  great  men  of  the  realm,  and  also  of  the  chancellor, 
treasurer,  clerk  of  the  privy  seal,  the  steward  of  the  King's  house, 
the  justice  of  the  one  bench  or  of  the  other,  and  other 

*  135    great  officers  of  the  realm,  and  he  that  *  doth  so  shall  be 

taken  and  imprisoned,  till  he  hath  found  him  of  whom  the 
speech  shall  be  moved  :  It  is  accorded  and  agreed  in  this  Parlia- 
ment, that  when  any  such  is  taken  and  imprisoned,  and  cannot 
find  him  by  whom  the  speech  be  moved,  as  before  is  said,  that  he 
be  punished  by  the  advice  of  the  council,  notwithstanding  the 
said  statutes."  2 

Although  by  these  statutes  no  civil  remedy  is  expressly  given,  yet  the 
violation  of  these  provisions  entitles  the  great  men  of  the  realm  to  sue  for 
damages,  on  the  well-known  principle,  that  if  A.  does  an  act  expressly  pro- 
hibited by  statute,  whereby  B.  is  prejudiced,  A.  must  compensate  B.  for 
such  private  injury.  A.  will  also  be  liable  to  imprisonment  for  contempt 
on  the  information  of  the  Attorney-General. 

All  peers,  whether  of  Great  Britain  or  of  Scotland,^  are  within 
the  statute  ;  including  a  viscount,  though  such  a  title  of  honor 

1  2  Rich.  II.  St.  I.  c.  5.  2  12  Rich.  II.  c.  11. 

^  5  Anne,  c.  8,  s.  23. 

124 


SCANDALUM  MAGNATUM.  *  135 

was  unknown  wlien  the  statute  was  passed.^  The  King  himself  is 
within  the  3  Edw.  I.  c.  34  ;  2  but  not  within  2  Rich.  II.  st.  1,  c.  5, 
not  being  "  a  great  man  "  of  his  own  realm.^  A  peeress  is  not 
within  either  statute.*  A  baron  of  the  Exchequer  (and  now  any 
judge  of  the  Supreme  Court  of  Judicature)  is  within  the  statutes. 
Of  course  the  rank  or  dignity  which  entitles  the  plaintiff  to  sue  in 
Scandalum  Magnatum  must  have  been  attained  before  the  words 
complained  of  were  published. 

Although  the  words  of  the  statute  are  "  horrible  and  false  lies,"  yet  they 
have  been  strained  to  cover  words  which  in  no  way  affect  the  life  or  dignity 
of  the  peer,  but  which  are  merely  uncivil  expressions,  expressing  general 
disesteem  for  his  lordship.  For  it  is  alleged  that  such  expressions,  though 
not  likely  to  result  in  general  discord,  and  the  "  quick  subversion  of 
the  *  realm,"  yet  impugn  and  vilify  the  honor  of  the  nobles,  and  *  136 
tend  to  provoke  to  a  breach  of  the  peace.^  The  words  also  were  sup- 
posed to  echo  through  the  kingdom,  being  spoken  of  a  peer  of  the  realm ; 
and  the  plaintiff,  therefore,  had  this  further  privilege  that  he  could  lay  the 
venue  where  he  pleased,  and  was  not  bound  like  an  ordinary  plaintiff  to 
try  in  the  county  where  the  words  were  spoken. 

Illustration. 

Words  complained  of:  —  "I  value  my  Lord  Marquess  of  Dorchester  no  more  than 
I  value  the  dog  at  my  foot."  Held  that  the  action  was  well  laid  in  Scandalum  Mag- 
natum, the  plaintiff  being  a  Marquess.  But  a  private  person  would  have  had  no  ac- 
tion for  such  words  without  proof  of  special  damage,  as  they  merely  show  the  esteem 
in  which  the  defendant  held  him.  Proby  v.  Marquess  of  Dorchester  (in  eri'or),  1  Lev- 
inz,  148  ;  Lord  Falkland  v.  Fhipps,  2  Comyns,  439  ;  1  Vin.  Abr.  549. 

But  the  civil  proceeding  under  these  statutes  is  now  quite  obsolete.  This 
may  be,  as  alleged  in  Eussell  on  Crimes,"  because  the  nobility  prefer 
"  to  waive  their  privileges  in  any  action  of  slander,  and  to  stand  upon  the 
same  footing,  with  respect  to  civil  remedies,  as  their  fellow  subjects,"  Or 
it  may  possibly  be  due  to  the  decision  in  Lord  Peterborough  v.  Williams,'' 
that  in  scandalum  magnatum  no  costs  are  to  be  given  to  the  plaintiff, 
though  the  verdict  be  for  him.  I  believe  no  such  action  has  been  brought 
since  1710.« 

1  Viscount  Say  &  Seal  v.  Stephens,  Cro.  Car.  135  ;  Ley,  82. 

2  12  Rep.  133. 

8  Cromp.  Author.  19,  35.  4  Cromp.  Author.  34. 

5  But  see  the  remarks  of  Atkins,  J.,  in  2  Mod.  161-165.  Lord  Townshend  v.  Dr. 
■Hughes.  6  5tii  ed.,  vol.  iii.,  p.  203,  n. 

7  2  Shower,  506,  or  in  Butt's  ed.,  p.  650. 

8  The  Duke  of  Richmond  v.  Costelow,  11  Mod.  235, 

125 


*137  *  CHAPTER  V. 

SLAKDER  OF  TITLE,   OR   WORDS   CONCERNING  THINGS. 

Words  cannot  be  defamatory  unless  they  directly  affect  some 
person  ;  either  in  his  individual  capacity,  or  in  his  office,  profes- 
sion, or  trade.  Sometimes  no  doubt  an  attack  on  a  thing  may  be 
an  indirect  attack  upon  an  individual ;  and  may  therefore  be  action- 
able, as  defamatory  of  him.  Thus  where  the  defendant  said  of  the 
plaintiff;  "  He  is  a  cheat ;  he  has  nothing  but  rotten  goods  in  his 
shop  ;  "  this  was  rightly  held  a  slander  on  the  plaintiff  in  the  way 
of  his  trade  ;  ^  for  the  words  clearly  imputed  that  the  defendant 
was  aware  of  the  unsatisfactory  nature  of  his  wares,  and  yet  con- 
tinued to  foist  them  on  the  public.  So  to  charge  a  tradesman 
with  wilfully  adulterating  the  goods  he  sells  is  clearly  an  attack 
on  liim  as  well  as  on  his  goods,  and  would  therefore  be  actionable 
without  special  damage.^ 

But  wholly  apart  from  these  cases  there  is  a  branch  of  the  law 
(generalty  known  by  the  inappropriate  but  convenient  name  — 
Slander  of  Title)  which  permits  an  action  to  be  brought  against 
any  one  who  maliciously  decries  the  plaintiff's  goods  or  some 
other  thing  belonging  to  him,  and  thereby  produces  special 
*  138  damage  to  the  *  plaintiff.  This  is  obviously  no  part  of  the 
law  of  defamation,  for  the  plaintiff's  reputation  remains 
uninjured  ;  it  is  really  an  action  on  the  case  for  maliciously  acting 
in  such  a  way  as  to  inflict  loss  upon  the  plaintiff.  All  the  pre- 
ceding rules  dispensing  with  proof  of  malice  and  special  damage 
are  therefore  wholly  inapplicable  to  cases  of  this  kind.  Here,  as 
in  all  other  actions  on  the  case,  there  must  be  et  damnum  et  in- 
juria. The  injuria  consists  in  the  unlawful  words  maliciousl}'- 
spoken,  and  the  damnum  is  the  consequent  money  loss  to  the 
plaintiff. 

1  Buraet  V.  Wells  (1700),  12  I\Iod.  420. 

2  Jesson  V.  Hayes  (1636),  Roll.  Abr.  63.  See  also  Ingram  v.  Lawson,  6  Bing.  N.  C. 
212;  8  Scott,  478,  and  other  cases  cited,  ante,  pp.  32-34. 

126 


SLANDER   OF   TITLE. 


138 


I.  Slander  of  title  proper. 

Where  the  plaintiff  possesses  an  estate  or  interest  in  any  real 
or  personal  property,  an  action  lies  against  any  one  who  mali- 
ciously comes  forward  and  falsely  denies  or  impugns  the  plaintiff's 
title  thereto,  if  thereby  damage  follows  to  the  plaintiff.^  (a) 

The  statement  must  be  false  ;  if  there  be  such  a  flaw  in  the 
title  as  the  defendant  asserted,  no  action  lies.  And  the  statement 
must  be  malicious  ;  if  it  be  made  in  the  bond  fide  assertion  of  de- 
fendant's own  right,  real  or  supposed,  to  the  property,  no  action 
lies.  But  whenever  a  man  unnecessarily  intermeddles  with  the 
affairs  of  others  with  which  he  is  wholly  unconcerned,  such  offi- 
cious interference  will  be  deemed  malicious  and  he  will  be  liable, 
if  damage  follow.  Lastly,  special  damage  must  be  proved,  and 
shown  to  have  arisen  from  defendant's  words.     And  for  this  it  is 

1  Pater  v.  Baker,  3  C.  B.  869;  16  L.  J.  C.  P.  124;  11  Jur.  370. 


(a)  The  law  of  slander  of  title,  the  law 
that  is  to  say  relating  to  false  statements 
concerning  one's  title  to  property  or  the 
quality  thereof,  belongs  properly  to  the  law 
of  deceit  rather  than  to  the  law  of  defama- 
tion; as  the  author  and  others  have  pointed 
out.  See  for  a  consideration  of  the  sub- 
ject Bigelow's  L.  C.  Torts,  54,  note.  Un- 
like defamation  false  statements  of  this 
kind  are  not  in  common  experience  found 
to  be  so  generally  inspired  of  malice  as  to 
raise  a  natural  presumption  that  they  are 
malicious;  and  it  therefore  devolves  upon 
the  plaintiff,  as  in  the  action  of  deceit,  to 
prove  ih.&  animus  (malice;  called  intent  in 
deceit)  of  the  defendant  by  express  evi- 
dence. The  words  alone  are  not  (in  ordi- 
nary cases  at  least)  enough.  Hovey  v. 
Eubber  Pencil  Co.,  57  N.  Y.  119,  explain- 
ing Snow  V.  Judson,  38  Barb.  210,  and 
following  Wren  v.  Weild,  L.  E.  4  Q.  B. 
70;  Kendall  v.  Stone,  2  Sandf.  269  (re- 
versed in  5  N.  Y.  14,  but  not  on  this 
point);  McDaniel  v.  Baca,  2  Cal.  326; 
Stark  V.  Chetwood,  5  Kaus.  141;  Keid  v. 
McLendon,  44  Georgia,  156;  Townshend, 
Slander,  §  130.  Knowledge  of  the  falsity 
of  the  statement  will  undoubtedly  estab- 
lish malice  as  in  the  ordinary  action  of 
slander  (jwst,  p.  145);  and  there  are  prob- 
ably cases  in  slander  of  title  as  in  deceit  in 
which  the  defendant  would  be  held  bound 


to  know  of  the  truth  of  his  statements. 
In  such  cases  proof  of  the  mere  falsity  of 
the  rejjresentation  made  would  by  estab- 
lishing knowledge  thereof  establish  malice; 
unless  malice  is  to  be  treated  as  something 
peculiar.  Concerning  the  law  of  deceit 
upon  this  point  see  Bigelow,  Torts,  19-22 
(Students'  series).  Again  malice  may  be 
shown  by  evidence  of  want  of  any  reason- 
able gi-ound  for  making  the  statement. 
Western  ]\Ianure  Co.  v.  Lawes  Manure  Co., 
L.  Pv.  9  Ex.  218;  2^ost,  p.  145.  It  should 
be  noticed  in  this  connection  that  the  law 
of  slander  of  title  differs  from  the  law  of 
slander  and  corresponds  with  the  law  of 
deceit  in  another  particular  not  often 
pointed  out;  to  wit,  in  the  requirement 
(for  it  appears  to  be  necessary)  that  the 
plaintiff  should  by  express  evidence  prove 
the  defendant's  statement  false.  The  law 
of  slander  of  title  accords  further  with  the 
law  of  deceit  in  requiring  the  plaintiff  to 
prove  that  he  has  sustained  special  dam- 
age by  reason  of  the  defendant's  publica- 
tion. Gott  V.  Pulsifer,  122  Mass.  235; 
Swan  V.  Tappan,  5  Cush.  104;  Malachy  v. 
Soper,  3  Bing.  N.  C.  371;  s.  c.  Bigelow's 
L.  C.  Torts,  42.  See  further  Like  v.  Mc- 
Kinstry,  4  Keyes,  397;  Hill  v.  Ward,  13 
Ala.  3i0;  Paull  v.  Halferty,  63  Penn.  St. 
46. 

127 


*  138  SLAXDER   OF   TITLE. 

generally  necessary  for  the  plaintiff  to  prove  that  he  was  in  act 
of  selling  his  property  either  by  public  auction  or  private  treaty, 
and  that  the  defendant  by  his  words  prevented  an  intending  pur- 
chaser from  bidding  or  competing.^    So  proof  that  plaintiff 

*  139    *  wished  to  let  his  lands  and  that  the  defendant  prevented 

an  intending  tenant  from  taking  the  lease  will  be  suflScient. 
But  a  mere  apprehension  that  plaintiffs  title  might  be  drawn  in 
question,  or  that  the  neighbors  placed  a  lower  value  on  plaintiff's 
lands  in  their  own  minds  in  consequence,  the  same  not  being 
offered  for  sale,  will  not  be  sufficient  evidence  of  damage,  "  This 
action  lieth  not  but  by  reason  of  the  prejudice  in  the  sale."  ^  The 
special  damage  must  always  be  such  as  naturally  or  reasonably 
arises  from  the  use  of  the  words.^ 

It  makes  no  difference  whether  the  defendant's  words  be  spoken 
or  written  or  printed ;  save  as  affecting  the  damages,  which 
should  be  larger  where  the  publication  is  more  permanent  or 
extensive,  as  by  advertisement.* 

The  property  may  be  either  real  or  personal ;  and  the  plaintiff's 
interest  therein  may  be  either  in  possession  or  reversion.  It  need 
not  be  even  a  vested  interest,  so  long  as  it  is  anything  that  is 
saleable  or  that  has  a  market  value. 

lu  one  or  two  old  cases  it  seems  to  have  been  held  that  no  actual  present 
damage  need  be  proved.  "  The  law  gives  an  action  for  but  a  possibility  of 
damage,  as  an  action  lies  for  calling  an  heir-apparent  *  bastard.' "  ^  (a)  But 
even  in  Turner  v.  Sterling,  Vaughan,  C. J.,  says  :  —  "I  take  it  that  'tis  not 
actionable  to  call  a  man  bastard  while  his  father  is  alive ;  the  books  are 
cross  in  it."  ®     Both  dicta  were  merely  obiter.     And  in  Onslow  v. 

*  140    Home,'  De  Grey,  C. J.,  *  says :  —  "I  know  of  no  case  where  ever 

an  action  for  words  was  grounded  upon  eventual  damages  which 
may  possibly  happen  to  a  man  in  a  future  situation."  There  is  no  case 
precisely  in  point  since  1638  ;  but  the  tendency  of  all  modern  decisions  is 

1  Tasburgh  v.  Day,  Cro.  Jac.  484;  Lowe  v.  Harewood;  Sir  W.  Jones,  196;  Cro.  Car. 
140. 

2  Per  Tenner,  J.,  in  Bold  v.  Bacon,  Cro.  Eliz.  346. 

3  Haddon  v.  Lott,  15  C.  B.  411;  24  L.  J.  C.  P.  49;  see  2}ost,  c.  X. 

*  Malachy  v.  Soper  &  anotlier,  3  Bing.  N.  C.  371;  3  Scott,  723;  2  Hodges,  217. 

5  Per  Wj'lde,  J.,  in  Turner  v.  Sterling  (1671),  2  Vent.  26;  Anon.,  1  Roll.  Abr.  37. 
See  Humfreys  v.  Stanfield  or  Stridfield  (1638),  Cro.  Car.  469;  Godb.  451;  Sir  Wm. 
Jones,  388;  1  Roll,  Abr,  38;  Banister  v.  Banister,  4  Rep.  17. 

6  2  Vent.  28,  ^  3  Wils.  188;  2  W.  Bl.  753, 

(a)  Contra,  Hoar  v.  Ward,  47  Vt.  657. 

128 


SLAXDER   OF   TITLE.  *  140 

against  the  view  of  Wylde,  J.,  which  must  bow,  I  think,  be  deemed  obso- 
lete. 

There  is  clearly  no  reason  why  a  man  who  has  no  estate  in  the  lands, 
but  only  a  mere  expectancy,  should  be  allowed  an  action,  whilst  he  in 
whom  an  estate  is  vested  must  prove  special  damage  or  be  nonsuited.  Of 
course,  if  the  heir-apparent  has  in  fact  been  disinherited  in  consequence  of 
defendant's  words,  the  special  damage  is  clear  and  the  action  lies. 

Illustrations. 

Lands  were  settled  on  D.  in  tail,  remainder  to  the  plaintiff  in  fee.  D.  being  an  old 
man  and  childless,  plaintiff  was  about  to  sell  his  remainder  to  A.,  when  the  defendant 
interfered  and  asserted  that  D.  had  issue.  A.  consequently  refused  to  buy.  Held  that 
the  action  lay.     Bliss  v.  Stafford,  Owen,  37;  Moore,  188;  Jeuk.  247. 

The  plaintiff's  father  being  tenant-in-tail  of  certain  lands,  which  he  was  about  to 
sell,  the  purchaser  offered  the  plaintiff  a  sum  of  money  to  join  in  the  assurance  so  as  to 
estop  him  from  attempting  to  set  aside  the  deed,  should  he  ever  succeed  to  the  estate 
tail;  but  the  defendant  told  the  purchaser  that  the  plaintiff  was  a  bastard,  wherefore  he 
refused  to  give  the  plaintiff  anything  for  his  signature.  Held  that  the  plaintiff  had  a 
cause  of  action,  though  he  was  the  youngest  son  of  his  father,  and  his  chance  of  suc- 
ceeding therefore  remote,     Vaughan  v.  Ellis,  Cro.  Jac.  213. 

Plaintiff  succeeded  to  certain  lands  as  heir-at-law;  the  defendant  asserted  that  he 
was  a  bastard;  plaintiff  was  in  consequence  put  to  great  expense  to  defend  his  title. 
Elborow  V.  Allen,  Cro.  Jac.  642. 

The  defendant  falsely  represented  to  the  bailiff  of  a  manor  that  a  sheep  of  the  plain- 
tiff was  an  estray,  in  consequence  of  which  it  was  wrongfully  seized.  Held  that  an 
action  on  the  case  lay  against  him.     Newman  v.  Zachary,  Aleyn,  3. 

The  plaintiff  was  desirous  to  sell  his  lands  to  any  one  who  would  buy  them,  when 
the  defendant  said  that  the  plaintiff  had  mortgaged  all  his  lands  for  £100,  and  that 
he  had  no  power  to  sell  or  let  the  same.  No  special  damage  being  shown,  judgment 
was  stayed.  It  was  not  proved  that  any  one  intending  to  buy  plaintiff's  lands  heard 
defendant  speak  the  words.     Manning  v.  Avery  (1674),  3  Keb.  153;  1  Vin.  Abr.  553. 

The  plaintiff  was  possessed  of  tithes  which  he  desired  to  sell;  the  defendant  falsely 
and  maliciously  said:—  "  His  right  and  title  thereunto  is  nought,  and  I  have 
a  better  title  than  he."  As  special  damage  it  was  *  alleged  that  the  plaintiff  *  141 
"was  likely  to  sell,  and  was  injured  by  the  words  ;  and  that  by  reason  of  the 
defendant's  speaking  the  words,  the  plaintiff  could  not  recover  his  tithes."  Held  insuf- 
ficient. Cane  v.  Golding  (1649),  Style,  169,  176;  Law  v.  Harwood  (1629),  Sir  Wm. 
Jones,  196;  Palm.  529;  Cro.  Car.  140. 

The  plaintiff  was  the  assignee  of  a  beneficial  lease,  which  he  expected  would  realize 
£100.  But  the  defendant,  the  superior  landlord,  came  to  the  sale,  and  stated  publicly : 
—  "The  whole  of  the  covenants  of  this  lease  are  broken,  and  I  have  served  notice  of 
ejectment ;  the  premises  will  cost  £70  to  put  them  in  repair."  In  consequence  of  this 
statement  the  property  fetched  only  35  guineas.  Kolfe,  B.,  left  to  the  jury  only  one 
question.  Was  the  defendant's  statement  true  or  false  ?  and  they  found  a  verdict  for  the 
plaintiff ;  damages,  £40.  But  the  Court  of  Exchequer  granted  a  new  trial  on  the  ground 
that  two  other  questions  ought  to  have  been  left  to  the  jury  as  well  :  —  Was  the  state- 
ment or  any  part  of  it  made  maliciously  ?  and.  Did  the  special  damage  arise  from  such 
malicious  statement  or  from  such  part  of  it  as  was  malicious  ?    Brook  v.  Kawl,  4  Exch. 

9  129 


*  141  SLANDER   OF  TITLE. 

521  ;  19  L.  J.  Ex.  114.     And  see  Smith  v.  Spooner,  3  Taunt.  246;  Milman  v.  Pratt, 
2  B.  &  C.  486  ;  3  D.  &  R.  728. 

The  plahitiff  held  160  shares  in  a  silver  mine  in  Cornwall,  which  he  said  were  worth 
£100,000.  ToUervey  and  Hayward  each  filed  a  bill  in  Chancery  against  the  plaintiff 
and  others  claiming  certain  shares  in  the  mine,  and  praying  for  an  account  and  an  in- 
junction, and  for  the  appointment  of  a  receiver.  To  these  bills  plaintiff  demurred. 
Before  the  demurrers  came  on  for  hearing,  a  paragi-aph  appeared  in  the  defendant's 
newspaper  to  the  effect  that  the  demurrers  had  been  overruled,  that  an  injunction  had 
been  granted,  that  a  receiver  had  been  duly  appointed,  and  had  actually  arrived  at  the 
mine  ;  all  of  which  was  quite  untrue.  A  verdict  having  been  obtained  for  the  plain- 
tiff, damages  £5  ;  the  Court  of  Common  Pleas  arrested  judgment  on  the  ground  that 
there  was  no  sufficient  allegation  of  special  damage,  and  this,  although  the  declaration 
contained  averments  to  the  effect  that  "  the  plaintiff  is  injured  in  his  rights  ;  and  the 
shares  so  possessed  by  him,  and  in  which  he  is  interested,  have  been  and  are  much  de- 
preciated and  lessened  in  value  ;  and  divers  persons  have  believed  and  do  believe  that 
he  has  little  or  no  right  to  the  shares,  and  that  the  mine  cannot  be  lawfully  worked 
or  used  for  his  benefit  ;  and  that  he  hath  been  hindered  and  prevented  from  selling  or 
disposing  of  his  said  shares  in  the  said  mine,  and  from  working  and  using  the  same  in 
so  ample  and  beneficial  a  manner  as  he  otherwise  would  have  done."  Malachy  v.  Soper 
and  another,  3  Bing.  N.  C.  383  ;  3  Scott,  723  ;  2  Hodges,  217.  And  see  Hart  and  an- 
other V.  Wall,  2  C.  P.  D.  146  ;  46  L.  J.  C.  P.  227  ;  25  W.  R.  373,  ante,  p.  34. 

It  is  not  actionable   for  any  man  to  assert  his  own 

*  142    *  rights  at  any  time.      And  even  where  the  defendant 

fails  to  prove  such  right  on  investigation,  still  if  at  the 
time  he  spoke  he  bond  fide  supposed  such  right  to  exist,  no  action 
lies.^  Hence,  whenever  a  man  claims  a  right  or  title  in  himself, 
it  is  not  enough  for  the  plaintiff  to  prove  that  he  had  no  such 
right ;  he  must  also  give  evidence  of  express  malice  ;  ^  that  is,  he 
must  also  attempt  to  show  that  the  defendant  could  not  honestly 
have  believed  in  the  existence  of  the  right  he  claimed,  or  at  least 
that  he  had  no  reasonable  or  probable  cause  for  so  believing.  If 
there  appear  no  reasonable  or  probable  cause  for  his  claim  of  title, 
still  the  jury  are  not  bound  to  find  malice ;  the  defendant  may 
have  acted  stupidly,  yet  from  an  innocent  motive.^  But  in  all 
cases  where  it  appears  that  the  defendant  at  the  time  he  sj^oke 
knew  that  what  he  said  was  false,  the  jury  should  certainly  find 
malice  ;  lies  which  injure  another  cannot  be  told  bond  fide. ^ 

The  law  is  the  same  where  the  defendant  is  an  agent  or  attor- 
ney, and  claims  for  his  principal  or  client  a  title  which  he  hon- 

1  Can-  V.  Duckett,  5  H.  &  N.  783  ;  29  L.  J.  Ex.  468. 

2  Smith  V.  Spooner,  3  Taunt.  246. 

8  Pitt  V.  Donovan,  1  M.  &  S.  643  ;  Steward  v.  Young,  L.  R.  5  C.  P.  122  ;  39  L.  J. 
C.  P.  85  ;  18  W.  R.  492  ;  22  L.  T.  168  ;  Clark  v.  Molyneux,  3  Q.  B.  D.  237;  47  L.  J. 
Q.  B.  230  ;  26  W.  R.  104  ;  37  L.  T.  694. 

*  Waterer  v.  Freeman,  Hob.  266. 

130 


MALICE.  *  142 

estly  believes  him  to  possess.^  So  where  a  man  bond  fide  asserts 
a  title  in  his  father  or  other  near  relative  to  whom  he  or  his  wife  is 
heir  apparent.^  But  where  the  defendant  makes  no  claim 
Ht  all  for  himself  or  any  connection  of  his,  but  *  asserts  a  *  143 
title  in  some  one  who  is  a  stranger  to  him ;  here  he  clearly 
is  meddling  in  a  matter  which  is  no  concern  of  his ;  and  such 
officious  and  unnecessary  interference  will  be  deemed  mahcious.^ 
"  If  some  portions  of  the  statement  which  a  person  makes  are 
bond  fide,  but  others  are  maid  fide,  and  occasion  injury  to  another, 
the  injured  party  cannot  recover  damages  unless  he  can  distinctly 
trace  the  damage  as  resulting  from  that  part  which  is  made  inald 
fide.''  *     So  if  part  be  true  and  part  false.^ 

Illustrations. 

PlaintifiF  had  purchased  the  manor  and  castle  of  H.  in  fee  from  Lord  Audley,  and 
was  about  to  demise  them  to  Ralph  Egerton  for  a  term  of  twenty-two  years,  when  the 
defendant,  a  widow,  said,  "I  have  a  lease  of  the  castle  and  manor  of  H.  for  ninety 
years  ; "  and  she  showed  him  what  purported  to  be  a  lease  from  a  former  Lord  Audley 
to  her  husband  for  a  term  of  ninety  years.  This  lease  was  a  forgery  ;  but  the  defend- 
ant was  not  aware  of  it.  Held  that  no  action  lay  for  slander  of  title  ;  for  the  defendant 
had  claimed  a  right  to  the  property  herself.  It  would  have  been  otherwise  had  she 
known  the  lease  was  a  forgery.  Sir  G.  Gerard  v.  Dickenson,  4  Rep.  18  ;  Cro.  Eliz. 
197.     And  see  Fitzh.  Nat.  Brev.  116  B.  &  D.;  Lovett  v.  Weller,  1  Roll.  409. 

If  the  defendant  asserts  that  plaintiff  is  a  bastard,  and  that  he  himself  is  the  next 
heir,  no  action  lies.  Banister  v.  Banister  (1683),  4  Rep.  17  ;  Cane  v.  Goldiug  (1649), 
Styles,  169,  176. 

The  plaintift  put  up  for  sale  by  public  auction  eight  unfinished  houses  in  Agar  Town. 
The  defendant,  a  surveyor  of  roads  appointed  under  the  7  &  8  Vict.  c.  84,  had  pre- 
viously insisted  that  these  houses  were  not  being  built  by  the  plaintiff"  in  conformity 
with  the  Act.  He  now  attended  the  sale  and  stated  publicly,  "  My  object  in  attending 
the  sale  is,  to  inform  purchasers,  if  there  are  any  present,  that  I  shall  not  allow  the 
houses  to  be  finished  until  the  roads  are  made  good.  I  have  no  power  to  compel  the 
purchasers  to  complete  the  roads  ;  but  I  have  power  to  prevent  them  from  completing 
the  houses  until  the  roads  are  made  good."  In  consequence  only  two  of  the  carcasses 
were  sold ;  and  they  realized  only  £35  each,  instead  of  £65.  The  jury  found  a  verdict 
for  the  plaintiff  for  £18  12s.  But  the  Court  of  C.  P.  held  that  there  was  no  evidence 
of  malice  to  go  to  the  jury.  For  malice  is  not  to  be  inferred  from  the  circum- 
stance of  the  *  defendant  having  acted  upon  an  incorrect  view  of  his  duty,  *  144 
founded  upon  an  erroneous  construction  of  the  statute.  Pater  v.  Baker,  3 
C.  B.  831  ;  16  L,  J.  C.  P.  124 ;  11  Jur,  370  ;  Hargrave  v.  Le  Breton,  4  Burr.  2422. 

1  Hargiave  v.  Le  Breton,  4  Burr.  2422  ;  Steward  v.  Young,  L.  R.  5  C.  P.  122  ;  39 
L.  J.  C.  k  85  ;  18  W.  R.  492  ;  22  L.  T.  168. 

2  Pitt  V.  Donovan,  1  M.  &  S.  639  ;  Gutsole  v.  Mathers,  1  M.  &  W.  495  ;  5  Dowl. 
69  ;  2  Gale,  64  ;  1  Tyrw.  &  Gr.  694. 

8  Pennyman  v.  Rabanks,  Cro.  Eliz.  427  ;  1  Vin.  Abr.  551.  See  Jenkins's  Cen- 
turies,  247.  *  Per  Parke,  B.,  in  Brook  v.  Rawl,  4  Ex.  524.  ^  /j.  523. 

131 


*  144  SLANDER   OF   TITLE. 

The  plaintiff  was  the  widow  and  administratrix  of  her  deceased  husband,  and  adver- 
tised a  sale  of  some  of  his  property.  Defendant,  an  old  friend  of  the  husband,  there- 
upon put  an  advertisement  in  the  papers  offering  a  reward  for  the  production  of  the  will 
of  the  deceased.  The  defendant  subsequently  called  on  the  solicitor  of  the  deceased, 
and  was  assured  by  him  there  was  no  will ;  but,  in  spite  of  this,  the  defendant  attended 
at  the  sale  and  made  statements  which  effectually  prevented  any  person  present  from 
bidding.  After  waiting  twelve  months,  the  plaintiff  again  put  the  same  property  up 
for  sale,  and  defendant  again  stopped  the  auction.  Cockburn,  C.J.,  left  it  to  the  jury 
to  say  whether,  after  the  interview  with  the  plaintiff's  solicitor,  defendant  could  still 
possess  an  honest  and  reasonable  belief  that  the  deceased  had  left  a  will.  The  jury 
found  that  lie  had  not  that  belief.  Verdict  for  the  plaintiff.  Damages,  £54  7s. 
Atkins  V.  Perrin,  3  F.  &  F.  179. 

The  defendant  had  a  subsisting  patent  for  the  manufacture  of  spooling  machines  ; 
so  had  the  plaintiff.  The  defendant  wrote  to  certain  manufacturers,  customers  of  the 
plaintiff,  warning  them  against  using  the  plaintiff's  machine,  on  the  gi-ound  that  it  was 
an  infringement  of  the  defendant's  patent.  Held  that  "  the  action  could  not  lie  unless 
the  plaintiff  affirmatively  proved  that  the  defendant's  claim  was  not  a  bo7id  fide  claim 
in  support  of  a  right  which,  with  or  without  cause,  he  fancied  he  had,  but  a  maid  fide 
and  malicious  attempt  to  injure  the  plaintiff  by  asserting  a  claim  of  right  against  his 
own  knowledge  that  it  was  without  any  foundation."  Evidence  to  show  that  the  de- 
fendant's patent,  though  subsisting,  was  void  for  want  of  novelty,  was  not  admitted,  as 
being  irrelevant  in  this  action.  Wren  v.  Weild,  L.  R.  4  Q.  B.  730,  737  ;  10  B.  &  S. 
51  ;  38  L.  J.  Q.  B.  88,  327  ;  20  L.  T.  277.  And  see  Dicks  v.  Brooks,  15  Ch.  D.  22  ; 
49  L.  J.  Ch.  812  ;  29  W.  R.  87  ;  40  L.  T.  710  ;  43  L.  T.  71  ;  Hammersmith  Skating 
Rink  Co.  v.  Dublin  Skating  Rink  Co.,  10  Jr.  R.  Eq.  235. 

But  a  patentee  is  not  entitled  to  publish  statements  that  he  intends  to  institute 
legal  proceedings  in  order  to  deter  persons  from  purchasing  alleged  infringements  of  his 
patent,  unless  he  does  honestly  intend  to  follow  up  such  threats  by  really  taking  such 
proceedings.  Rollins  v.  Hinks,  L.  R.  13  Eq.  355  ;  41  L.  J.  Ch.  358  ;  20  W.  R.  287  ; 
26  L.  T.  56  ;  Axmann  v.  Lund,  L.  R.  18  Eq.  330  ;  43  L.  J.  Ch.  655  ;  22  W.  R. 
789  ;  Halsey  v.  Brotherhood,  15  Ch.  D.  514  ;  49  L.  J.  Ch.  786  ;  29  W.  R.  9  ;  43 
L.  T.  366. 

A.  died  possessed  of  furniture  in  a  beer-shop.  His  widow,  without  taking  out  ad- 
ministration, continued  in  possession  of  the  beer-shop  for  three  or  four  years, 
*  145  and  then  died,  having  whilst  so  in  possession  conveyed  *  all  the  furniture  by 
bill  of  sale  to  her  landlords  by  way  of  security  for  a  debt  she  had  contracted 
with  them.  After  the  widow's  death,  the  plaintiff  took  out  letters  of  administration 
to  the  estate  of  A.,  and  infonned  the  defendant,  the  landlords'  agent,  that  the  bill  of 
sale  was  invalid,  as  the  widow  had  no  title  to  the  furniture.  Subsequently  the  plain- 
tiff was  about  to  sell  the  furniture  by  auction,  when  the  defendant  interposed  to  forbid 
the  sale,  and  said  that  he  claimed  the  goods  for  his  principals  under  a  bill  of  sale.  On 
proof  of  these  facts,  in  an  action  for  slander  of  title,  the  plaintiff  was  nonsuited.  Held 
that  the  mere  fact  of  the  defendant's  having  been  told  before  the  sale  that  the  bill  of 
sale  was  invalid,  was  no  evidence  of  malice  to  be  left  to  the  jury,  and  that  the  plaintiff 
was  therefore  properly  nonsuited.  Steward  v.  Young,  L.  R.  5  C.  P.  122  ;  39  L.  J.  C.  P. 
85  ;  18  W.  R.  492;  22  L.  T.  168.  And  see  Blackham  v.  Pugh,  2  C.  B.  611  ;  15  L.  J. 
C.  P.  290. 

132 


WORDS  CONCERNING  THINGS.  *  145 


11.  Slander  of  Goods  manufactured  or  sold  hy  another. 

"  An  untrue  statement,  disparaging  a  man's  goods,  published 
without  lawful  occasion,  and  causing  him  special  damage,  is  ac- 
tionable." This  is  laid  down  as  a  general  principle  by  Bramwell, 
B.,  in  Western  Counties  Manure  Company  v.  Lawes  Chemical 
Manure  Company ;  ^  and  it  applies  although  no  imputation  is 
cast  on  the  plaintiff's  private  or  professional  character.  Nor  in 
the  opinion  of  the  same  learned  Judge  is  it  necessary  to  prove 
actual  malice;  it  is  sufficient  if  it  be  made  "  without  reasonable 
cause." 

At  the  same  time  it  is  not  actionable  for  a  man  to  commend 
his  own  goods ;  or  to  advertise  that  he  can  make  as  good  articles 
as  any  other  person  in  the  trade.^ 

In  Evans  v,  Harlow  (1844),^  which  appears  to  be  the  earliest  case  of  this 
kind,  no  special  damage  was  alleged  ;  and  the  only  point  decided  was  that 
the  words  were  not  a  libel  on  the  plaintiff  in  the  way  of  his  trade,  and 
that  therefore  no  action  lay.  The  Court  did  not  expressly  decide 
that,  had  special  damage  been  *  alleged,  the  declaration  would  *  1-46 
have  been  good,  though  Patteson,  J.,  was  clearly  of  that  opinion, 
as  appears  from  his  remarks  on  p.  633.  These  remarks  were  cited  to  the 
Court  in  the  next  case  of  the  kind.^  But  there  the  libel  did  not  impute 
that  the  plaintiff's  oil  was  bad  in  itself,  but  merely  alleged  that  it  was 
inferior  to  that  of  the  defendant ;  and,  again,  it  Avas  held  that  no  action 
lay.  Blackburn,  J.,  asks  : ^  —  "Is  there  any  case  where  an  action  has  been 
maintained  for  slander,  written  or  verbal  of  goods,  unless  where  the  slan- 
der is  of  the  title  to  them,  and  special  damage  has  resulted  ?  "  But  the 
dicta  of  the  other  judges  fully  bear  out  the  head-note: — " Semble,  that 
if  a  person  falsely  and  maliciously  disparages  an  article  which  another 
manufactures  or  vends,  and  special  damage  results  therefrom,  an  action  will 
lie,  although  in  so  doing  no  imputation  was  cast  on  the  personal  or  profes- 
sional character  of  the  manufacturer  or  vendor."  And  this  semble  may 
now,  I  think,  be  considered  as  settled  law,  since  the  decision  in  Western 
Counties  Manure  Co.  v.  Lawes  Chemical  Manure  Co.,  supra. 

It  is  unfortunate  that  in  the  report  of  Young  v.  Macrae,  in  the  Law 
Journal,®  Cockburn,  C. J.,  is  represented  as  stating  :  —  "I  am  very  far  from 

1  L.  R.  9  Ex.  218,  222  ;  43  L.  J.  Ex.  171 ;  23  W.  R.  5. 

2  Harman  v.  Delany,  2  Str.  898  ;  1  Barnard.  289  ;  Fitz.  121. 
8  5  Q.  B.  624  ;  13  L.  J.  Q.  B.  120  ;  Dav.  &  M.  507. 

*  Young  V.  Macrae,  3  B.  &  S.  264  ;  32  L.  J.  Q.  B.  6 ;  11  W,  R.  63  ;  9  Jur.  N.  S. 
539  ;  7  L.  T.  354.  5  3  B.  &  S.  269.  ^  30  Q.  B.  p.  8. 

133 


*  146  SLANDER   OF  TITLE. 

saying  that  if  a  trader  maliciously,  and  falsely  to  his  own  Tcnowledge,  pub- 
lishes matter  disparaging  an  article  manufactured  or  sold  by  another,  even 
if  he  makes  no  reflection  upon  the  character,  trade,  or  profession  of  that 
other,  and  if  special  damage  followed,  that  there  would  not  be  an  action- 
able libel ;  for  a  most  grievous  wrong  might  be  done  in  that  way,  and  the 
person  injured  ought  to  have  a  remedy  by  an  action."  The  words  "  falsely 
to  his  own  knowledge  "  seem  to  imply  that  fraud  or  misrepresentation  is 
essential  to  the  cause  of  action ;  and  it  is  on  the  authority  of  this  passage, 
no  doubt,  that  I  find  it  stated  in  Addison  on  Torts  :  ^  "  Disparaging  criti- 
cisms by  one  tradesman  upon  the  goods  of  a  rival  tradesman  are  not  action- 
able, unless  it  is  proved  that  they  have  been  maliciously  and  fraudulently 
made,  and  were  false  to  the  knowledge  of  the  party  at  the  time  they  tvere 
made.'''  But  in  no  other  place  in  the  Law  Journal  Eeport  is  there  any  hint 
that  a  scienter  must  be  proved,  although  the  Lord  Chief  Justice 

*  147     *  gives   several  instances   during  the   argument  and  later  in  his 

judgment,  in  which  in  his  opinion  an  action  would  lie.  That  the 
statement  was  false  to  the  knowledge  of  the  defendant  is  cogent  evidence 
of  malice  ;  but  surely  any  other  evidence  of  malice  would  be  sufficient. 
In  Best  &  Smith,  the  passage  cited  above  is  given  as  follows  :  —  "I  am  far 
from  saying  that  if  a  man  falsely  and  maliciously  makes  a  statement  dis- 
paraging an  article  which  another  manufactures  or  vends,  although  in  so 
doing  he  casts  no  imputation  on  his  personal  or  professional  character,  and 
thereby  causes  an  injury,  and  special  damage  is  averred,  an  action  might 
not  be  maintained.  For  although  none  of  us  are  familiar  with  such  actions, 
still  we  can  see  that  a  most  grievous  wrong  might  be  done  in  that  way, 
and  it  ought  not  to  be  without  remedy."^  And  so  in  the  Law  Times 
Reports  ^  the  words  are  merely  "  falsely  and  maliciously ; "  in  the  Jurist  * 
merely  "  a  disparaging  notice  ; "  though  the  Weekly  Reporter  ^  contains  in 
addition  to  "  falsely  and  maliciously,"  the  words  "  by  statements  he  knows 
to  be  false."  In  Western  Counties  Manure  Co.  v.  Lawes  Manure  Co.,  the 
declaration  before  the  Court  did  not  contain  any  averment  "as  the  defend- 
ants well  knew."  See  the  whole  pleadings  in  the  Appendix.  I  conclude, 
therefore,  in  spite  of  the  passage  cited  above  from  Addison  on  Torts,  that 
the  defendant's  knowledge  of  the  falsity  of  his  statements  at  the  time  ho 
makes  them,  is  immaterial  in  this  action,  save  as  aggravating  the  damages. 
In  Thomas  v.  Williams,®  Fry,  J.,  decided  that  to  entitle  a  plaintiff"  to 
an  injunction  to  restrain  a  libel  injurious  to  trade  it  was  not  necessary  that 
he  should  prove  actual  damage. 

1  3d  ed.,  p.  787  ;  4tli  ed.,  p.  796  ;  5th  ed.,  p.  184. 

2  3  B.  &  S.  269.  3  7  L.  T.  355. 

4  9  Jur.  N.  S.  539.  ^  11  W.  R.  63. 

6  14  Ch.  D.  864  ;  49  L.  J.  Ch.  605  ;  28  AV.  R.  983 ;  43  L.  T.  91. 

184 


WORDS  PEODUCmG  DAMAGE.  *  147 

Illustrations. 

The  defendant  published  an  advertisement,  denying  that  the  plaintiff  held  any- 
patent  for  the  manufacture  of  "  self-acting  tallow  syphons  or  lubricators,"  and  caution- 
ing the  public  against  such  lubricators  as  wasting  the  tallow.  No  special  damage  was 
alleged.  Held  that  the  words  were  not  a  libel  on  the  plaintiff  either  generally,  or  in 
the  way  of  his  trade,  but  were  only  a  reflection  upon  the  goods  sold  by  him,  which  was 
not  actionable  without  special  damage.  Evans  v.  Harlow,  5  Q.  B.  624  ;  13  L.  J.  Q.  B. 
120  ;  Dav.  &  M.  507  ;  8  Jur.  571 ;  a7ite,  p.  33. 

*  "If  a  man  makes  a  false  statement  with  respect  to  the  goods  of  A.,  in    *  148 
comparing  his  own  goods  with  those  of  A.,  and  A.  suffers  special  damage,  will 
not  an  action  lie  ?  "     Per  Cockburn,  C.J.,  in  Young  and  others  v.  Macrae,  32  L.  J. 
Q.  B.  8  ;  and  counsel  answers,  "  Certainly  it  would." 

"  If  a  man  were  to  write  falsely  that  what  another  man  sold  as  Turkish  rhubarb 
Avas  three  parts  brickdust,  and  special  damage  could  be  proved,  it  might  be  action- 
able."    Per  Cockburn,  C.J.,  in  Young  and  others  v.  Macrae,  32  L.  J.  Q.  B.  7. 

The  defendant  published  a  certificate  by  a  Dr.  Muspratt,  who  had  compared  the 
plaintiff's  oil  with  the  defendant's,  and  deemed  it  inferior  to  the  defendant's.  It  was 
alleged  that  the  certificate  was  false,  and  that  divers  customers  of  the  plaintiff's  after 
reading  it  had  ceased  to  deal  with  the  plaintiff  and  gone  over  to  the  defendant.  Held 
that  the  plaintiff's  oil,  even  if  inferior  to  the  defendant's,  might  still  be  very  good  ; 
and  that  the  falsity  was  alleged  too  generally,  and  that  therefore  no  action  lay.  It  was 
consistent  with  the  declaration  that  every  word  said  about  the  plaintift''s  oil  should  be 
true,  and  the  only  falsehood  the  assertion  that  defendant's  was  superior  to  it,  which 
would  not  be  actionable.  "It  is  not  averred  that  the  defendant  falsely  represented 
that  the  oil  of  the  plaintiffs  had  a  reddish-brown  tinge,  was  much  thicker,  and  that  it 
had  a  more  disagreeable  odor.  If  that  had  been  falsely  re[)resented,  and  special  dam- 
age had  ensued,  an  action  might  have  been  maintained."  Young  and  others  v.  Macrae, 
3  B.  &  S.  264  ;  32  L.  J.  Q.  B.  6  ;  11  W.  R.  63 ;  9  Jur,  N.  S.  539  ;  7  L.  T.  354. 

The  defendants  falsely  and  without  lawful  occasion  published  a  detailed  analysis 
of  the  plaintiffs'  artificial  manure  and  of  their  own,  in  which  the  plaintiffs'  manure 
was  much  disparaged  and  their  own  extolled.  Special  damage  having  resulted,  held 
that  the  action  lay.  Western  Counties  Manure  Co.  v.  Lawes  Chemical  Manure  Co., 
L.  R.  9  Ex.  218  ;  43  L.  J.  Ex.  171  ;  23  W.  R.  5.  See  Thorley's  Cattle  Food  Co.  v. 
Massam,  6  Ch.  D.  582  ;  46  L.  J.  Ch.  713  ;  14  Ch.  D.  763  ;  28  W.  R.  295,  966  ;  41 
L.  T.  542  ;  42  L.  T.  851. 

The  defendant  stated  in  Ireland  that  the  plaintiff's  ship  was  unseaworthy,  conse- 
quently her  crew  refused  to  proceed  to  sea  in  her,  and  a  negotiation  for  the  sale  of  her 
fell  through.  The  ship  -was  in  England.  But  it  was  held  that  this  fact  would  not 
give  an  English  Court  jurisdiction.  Casey  v.  Arnott,  2  C.  P.  D,  24  ;  46  L.  J.  C.  P.  3  ; 
25  W.  R.  46  ;  35  L.  T.  424. 

There  are  many  other  cases  in  •which  words  produce  special 
damage  to  the  plaintiff  without  in  any  way  affecting  his  repu- 
tation ;  and  for  such  words  if  spoken  without  lawful  occasion  an 
action  on  the  case  will  lie,  provided  the  damage  be  the 
necessary  or  probable  consequence  *  of  the  words,  witliin  *  149 
the  meaning  of  the  strict  rules  laid  down  in  c.  X., 
pp.  321-333.  But  as  such  cases  are  clearly  beyond  the  scope  of 
the  present  treatise,  I  merely  subjoin  a  few  instances. 

135 


*149  SLANDER   OF   TITLE. 


Illustrations. 

If  a  man  menace  my  tenants  at  will,  of  life  and  member,  per  quod  they  depart  from 
their  tenures,  an  action  upon  the  case  will  lie  against  him,  but  the  menace  without 
their  departure  is  no  cause  of  action.  Conesby's  Case,  Year  Book,  9  Hen.  VIL,  pp.  7, 
8  ;  1  Roll.  Abr.  108. 

If  defendant  threatens  the  plaintiff's  workmen,  so  that  they  do  not  dare  to  go  on 
with  their  work,  whereby  the  plaintiff  loses  the  selling  of  his  goods,  an  action  lies. 
Garret  v.  Taylor  (1621),  Cro.  Jac.  567  ;  1  Roll.  Abr.  108  ;  Tarleton  and  others  v. 
McGawley,  Peake,  270.  And  see  Springhead  Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551  ; 
37  L.  J.  Ch.  889  ;  16  W.  R.  1138  ;  19  L.  T.  64  ;  Skinner  v.  Kitch,  L.  R.  2  Q.  B.  393  ; 
36  L.  J.  M.  C.  322  ;  15  W.  R.  830  ;  16  L.  T.  413. 

"  If  a  man  should  lie  in  wait  and  fright  the  boj's  from  going  to  school,  that  school- 
master might  have  an  action  for  the  loss  of  his  scholars,"  Per  Holt,  C.J.,  in  Keble  v. 
Hickeringill,  11  East,  576,  n. 

The  defendant  wrongfully  and  maliciously  caused  certain  persons  who  had  agreed  to 
sell  goods  to  the  plaintiff  to  refuse  to  deliver  them,  by  asserting  that  he  had  a  lien  upon 
them,  and  ordering  those  persons  to  retain  the  goods  until  further  orders  from  him,  he 
well  knowing  at  the  time  that  he  had  no  lien.  Held  that  the  action  was  maintainable, 
though  the  persons  who  had  the  goods  were  under  no  legal  obligation  to  obey  the 
orders  of  the  defendant,  and  their  refusal  was  their  own  spontaneous  act.  Green  v. 
Button,  2  C.  M.  &  R.  707. 

136 


*  CHAPTER  VI.  *150 

PUBLICATION. 

Publication  is  the  communication  of  the  defamatory  words 
to  some  third  person.  It  is  essential  to  the  plaintiff's  case  that 
the  defendant's  words  should  be  expressed ;  the  law  permits  us  to 
think  as  badly  as  we  please  of  our  neighbors  so  long  as  we  keep 
our  uncharitable  thoughts  to  ourselves.  Merely  composing  a 
libel  is  not  actionable  unless  it  be  published.  And  it  is  no  pub- 
lication when  the  words  are  only  communicated  to  the  person 
defamed  ;  for  that  cannot  injure  his  reputation.  A  man's  repu- 
tation is  the  estimate  in  which  others  hold  him  ;  not  the  opinion 
which  he  has  of  himself.  The  attempt  to  diminish  our  friend's 
good  opinion  of  himself,  though  possibly  unpleasant  to  him,  is 
yet  generally  ineffectual,  and  is  certainly  not  actionable,  unless 
some  one  else  overhears.  There  must  be  a  communication  bj'  the 
defendant  to  some  third  person,  other  than  the  plaintiff.^  And 
the  communication,  whether  it  be  in  words,  or  by  signs,  gestures, 
or  caricature,  must  be  intelligible  to  such  third  person.  If  the 
words  used  be  in  the  vernacular  of  the  place  of  publication,  it 
will  be  presumed  that  such  third  persons  understood  them,  until 
the  contrary  be  proved.  And  it  will  be  presumed  that  they  un- 
derstood them  in  the  sense  which  such  words  properly  bear  in 
their  ordinary  signification,  unless  any  reason  appear  for 
assigning  *  them  a  different  meaning.  Making  it  known  *  151 
to  one  individual  is  a  sufficient  "  publishing,"  provided  that 
that  one  is  not  the  person  defamed.  Such  publication  must  of 
course  be  prior  to  the  date  of  the  issuing  of  the  writ,  (a) 

i  Barrow  v.  Lewellin,  Hob.  62. 

(«)  In  some  of  the  States  it  is  made  un-  276.     See  Watts  v.  Morgan,  50  Ind.  318  ; 

necessary  by  statute  to  allege  technically  Mann  v.  Hants,  40   Ind.  122,  that  there 

the  publication  of  words  actionable  jacr  sc.  should   however  be   a    general  averment. 

Emmerson  v.  Marvel,  55  Ind.  265  ;  Guard  How  widely  a  mere  general  averment  of 

V.  Risk,  11  Ind.  156  ;    Hutts  v.  Hutts,  51  publication  instead  of  the  technical  allega- 

Ind.  581;    Atwinger  f.  Fellner,   46  Mo.  tion  that  the  words  (if  oral)  were  "  spoken 

137 


151 


PUBLICATION. 


Illustrations. 

To  shout  defamatory  words  on  a  desert  moor  where  no  one  can  hear  you  is  not  a 
publication  ;  but  if  any  one  chances  to  hear  you,  it  is  a  publication,  although  you 
thought  no  one  was  by. 


in  the  presence  and  hearing  of  divers  good 
citizens  of  the  State  "  or  the  like  is  per- 
mitted   does  not  appear  ;    but    no  doubt 
some  allegation  of  publication  is  always 
necessary.     See   Manning  v.  Bassett,    12 
Bush,    361  ;    Watts  v.   Morgan,    50    Ind. 
318 ;    Perry    v.    Porter,    124   Mass.   338  ; 
Chapin  v.  White,  102  Mass.  139  ;  Downs 
v.   Hawley,   112  Mass.    237  ;  Benedict  v. 
Westover,  44  Wis.  404  ;  Eoberts  v.  Loveli, 
38  Wis.  211  ;  Ware  v.  Cartledge,  24  Ala. 
622 ;  Burbank  v.    Horn,   39  Maine,  233  ; 
Brown  v.  Brashier,  2  Penn.  114  ;  Hurd  v. 
Moore,  2  Oreg.  85.   Publication  is  of  course 
of  the  essence  of  the  plaintiif's  case,  and 
must  be  proved   by  him.     See  the  cases 
above  cited,  and  further  Desmond  v.  Brown, 
33  Iowa,  13  ;  Hurtert  v.  Weines,  27  Iowa, 
134  ;  Bent  v.  Mink,  46  Iowa,  576  ;  Sim- 
mons d.  Holster,  13  ]\Iinn.  249  ;  McLaugh- 
lin V.   Russel,    17    Ohio,    475  ;    Duval  v. 
Davey,  32  Ohio  St.  604  ;  Huff -y.  Bennett, 
4  Sandf.  120  ;  Landa  v.  Obert,  45  Texas, 
540  ;  Commonwealth  v.  Morgan,  107  Mass. 
199  ;    Commonwealth  v.   Hall,    97  Mass. 
570  ;  Miller  v.  Johnson,  79  111.  58  ;  Clay 
v:  People,  86  111.  147. 

The  act  consists  in  the  making  known 
by  the  defendant  the  defamation  to  a  per- 
son other  than  the  plaintiff,  though  the 
plaintiff  may  of  course  be  present.  Within 
this  rule  husband  and  wife  are  not  to  be 
treated  as  one  person,  so  that  defamation 
of  either  in  the  presence  of  the  other  is 
published.  Post,  p.  153.  See  Nolan  v. 
Traber,  49  Md.  460  ;  Hawver  v.  Hawver, 
78  111.  412  ;  Duval  v.  Davey,  32  Ohio  St. 
604  ;  the  Illinois  and  Ohio  cases  holding 
the  husband  a  competent  witness  to  prove 
publication  of  words  slandering  the  M'ife. 
Publication  is  also  made  of  course  by  using 
the  language  before  the  plaintiff's  family 
as  well  as  before  strangers.  Miller  v.  John- 
son, 79  111.  58.  But  if  the  only  person 
present  besides  the  plaintiff  when  defama- 
tory words  were  spoken  was  a  foreigner  who 
did  not  understand  what  was  said,  there 
cannot  be  a  publication.  See  Hurtert  v. 
Weines,  27  Iowa,  134.     Indeed  the  mere 

138 


fact  that  a  third  person  is  present  who  does 
understand  the  language  is  not  necessarily 
sufficient  to  make  a  case  of  publication, 
since  he  may  not  be  addressed  and  it  may 
be  proper  to  charge  the  plaintiff  before  an- 
other under  the  circumstances.     Toogood 
V.  Spy  ring,  1  Cromp.  M.  &  E.  139  ;  s.  c. 
Bigelow's  L.  C.  Torts,  139.     But  this  is 
dangerous  doctrine,  and  it  should  clearly 
appear  to  have  been  proper  to  speak  the 
words  before  the  third  person.     It  seems 
indeed  publication  may  be  effected  through 
negligence,  though  in  fact  there  were  no 
actual  intention  to  publish.     This  will  be 
true  when  (and  only  when)  the  negligence 
of  the  defendant  had  an  obvious  tendency 
to  produce  the  result.     If  the  result  came 
about  as  the  natural  effect  of  the  defend- 
ant's negligence,  he  must  as  a  man  of  aver- 
age intelligence  have  foreseen  the  result 
(the  careful  man,  in  other  words,  would 
have  foreseen  it)  ;  and  foreseeing  the  result 
and  permitting  it,  he  therefore  intended  it, 
A  fortiori  one  who  being  informed  by  a 
newspaper  reporter  that  certain  statements 
supposed  to  have  been  made  by  him    are 
to  be  sent  to  the    paper    for    publication 
says    "let   them   go,"    thereby   publishes 
them  when  the  paper  appears.     Clay  v. 
People,  86  111.  147.     So  too  it  is  said  that 
a  prima  facie  case  of  publication  is  made 
out  by  evidence  that  the  defendant  threat- 
ened to  publish  the  defamation.     Bent  v. 
Mink,  46  Iowa,  576,  two  judges  dissenting. 
With  regard  to  the  mode  of  proving 
publication,  it  is  held  that  in  the  case  of  a 
newspaper  the  fact  may  be  shown  by  pro- 
ducing a  copy  of  the  paper  not  actually 
published,    in   connection   with    evidence 
that  similar  copies  were  published.     Sim- 
mons r.  Holster,  13  Minn.  249  ;  McLaugh- 
lin V.  Russel,  17  Ohio,  475  ;  Huff  v.  Ben- 
nett, 4  Sandf.  120.     Indeed  mere  printing 
of  the  particular  number  would  doubtless 
be   presumptive   evidence   of  publication. 
General    reputation  is  not  admissible  to 
show   publication.     Landa    v.    Obert,    45 
Texas,  540. 

Publication  again  may  be  alleged  gen- 


PUBLICATION.  *  151 

To  utter  defamatory  words  in  a  foreign  language  is  not  a  publication,  if  no  one  present 
understands  their  meaning  ;  but  if  defamatory  words  be  written  in  a  foreign  language, 
there  will  be  a  publication  as  soon  as  ever  the  writing  comes  into  the  hands  of  any  one 
who  does  understand  that  language,  or  who  gets  them  explained  or  translated  to  him. 

Sending  a  letter  through  the  post  to  the  plaintiff,  properly  addressed  to  him,  and 
fastened  in  the  usual  way,  is  no  publication  ;  and  the  defendant  is  not  answerable  for 
anythin<^  the  plaintiff  may  choose  to  do  with  the  letter  after  it  has  once  safely  reached 
his  hands.     Barrow  v.  Lewellin,  Hob.  62. 

In  an  American  case  the  plaintiff,  after  so  receiving  a  libellous  letter  from  the  defend- 
ant, sent  for  a  friend  of  his  and  also  for  the  defendant ;  he  then  repeated  the  contents 
of  the  letter  in  their  presence,  and  asked  the  defendant  if  he  wrote  that  letter  ;  the 
defendant,  in  the  presence  of  the  plaintiff's  friend,  admitted  that  he  had  written  it. 
Held,  no  publication  hy  tJie  defendant  to  the  plaintiff's  friend.  Fonville  v.  Nease, 
Dudley,  S.  C.  303. 

But  it  is  otherwise  if  a  message  be  sent  to  the  plaintiff  by  telegraph;  the  contents  of 
the  telegram  are  necessarily  communicated  to  all  the  clerks  through  whose  hands  it 
passes.  So  with  a  postcard.  AVhitfield  and  others  v.  S.  E.  Ey.  Co.,  E.  B.  &  E.  115  ; 
27  L.  J.  Q.  B.  229  ;  4  Jur.  N.  S.  688  ;  Williamson  v.  Freer,  L.  R.  9  C.  P.  393 ;  43  L. 
J.  C.  P.  161  ;  22  W.  R.  878  ;  30  L.  T.  332  ;  Robinson  v.  Jones,  4  L.  R.  Ir.  391. 

So  where  the  defendant  knew  that  the  plaintiff's  letters  were  always  opened  by  his 
clerk  in  the  morning,  and  yet  sent  a  libellous  letter  addressed  to  the  plaintiff,  which 
was  opened  and  read  by  the  plaintiff's  clerk  lawfully  and  in  the  usual  course  of  business. 
Held,  a  publication  by  the  defendant  to  the  plaintiff's  clerk.  Delacroix  v.  Thevenot, 
2  Stark.  63. 

So  where  the  defendant,  before  posting  the  letter  to  the  plaintiff,  had  it  copied. 
Held,  a  publication  by  the  defendant  to  his  own  clerk  who  copied  it.  Keene  v.  Ruff, 
1  Clarke  (Iowa),  482. 

*  So  where  the  defendant  wrote  a  letter  to  the  plaintiff  himself,  but  read  it       152 
to  a  friend  before  posting  it.     Snyder  v.  Andrews,  6  Barbour  (New  York),  43  ; 
McCombs  V.  Tuttle,  5  Blackford  (Indiana),  431. 

The  delivery  of  a  newspaper  containing  the  libel  to  the  proper  officer  of  the  Commis- 
sioners of  Stamps  and  Taxes  for  revenue  purposes  is  a  sufficient  ])ublication  of  the  libel ; 
although  the  proprietor  of  the  paper  was  required  by  law  so  to  deliver  it ;  for  the  stamp 
officer  "  would  at  all  events  have  an  opportunity  of  reading  "  the  libel.  R.  v.  Amphlit, 
4  B.  &  C.  35  ;  6  D.  &  R.  125. 

So  the  delivery  of  a  manuscript  to  be  printed  is  a  sufficient  publication  ;  even  though 

erally,  and  then  the  fact  may  be  proved  by  ficient  to  show  that  it  was  made  to  one  or 

any  one  who  heard  or  read  the  defamation,  two  members,  or  perhaps  to  any  number  of 

Perry  v.  Porter,  124  Mass.  338  ;  Ware  v.  members,  of  the  corporation  individually. 

Cartledge,  24  Ala.  622.     But  if  publication  Perry  ij.  Porter,  szy»-«.     Indeed  it  is  laid 

to  a  particular  person  or  body  alone  be  down  in  broader  terms  in  criminal  cases 

alleged,  then  it  is  held  that  the  allegation  that  publication  must  be  proved  as  alleged 

must  be  precisely  proved,  and  publication  except  when  the  question  relates  to  the 

to  that  person  or  body  established.     Perry  identity  of  the  subject-matter.  It  is  enough 

V.  Porter,  124  Mass.  338  ;  Chapin  v.  White,  in  Massachusetts  that  that  is  clearly  estab- 

102  Mass.    139;    Downs  v.   Hawley,    112  lished,  though    not  precisely  as    alleged. 

Mass.  237.     But  see  Goodrich  v.  Warner,  Commonwealth  v.  I\Iorgan,  107  Mass.  199  ; 

21    Conn.    432.     And   see   Richardson   v.  Commonwealth    v.    Hall,   97    Mass.   570. 

Hopkins,  7  Blackf.  116.     Nor  where  the  The  rule  so  made  by  statute  was  formerly 

allegation  is  that  the  publication  was  made  different.     Commonwealth  v.  Varney,  10^ 

to  a  certain  corporation  is  it  deemed  suf-  Cush.  402. 

139 


*  152  PUBLICATION". 

the  author  repent  and  suppress  all  the  printed  copies.  For  the  compositor  must  hear 
it  read.  Baldwin  v.  Elphiuston,  2  W,  BL  1037.  [This  may  be  considered  a  somewhat 
harsh  decision,  as  the  compositor  does  not  attend  to  the  substance  of  the  manuscript, 
but  sets  it  up  in  copy  mechanically  ;  but  it  has  recently  been  acted  on  in  America. 
TrumbuU  v.  Gibbons,  3  City  Hall  Recorder,  97.  And  see  Watts  v.  Fraser  and  another, 
7  Ad.  &  E.  223  ;  7  C.  &  P.  369  ;  1  M.  &  Rob.  449  ;  2  N.  &  P.  157  ;  1  Jur.  671 ;  W. 
W.  &  D.  451 ;  Lawless  v.  The  Anglo- Egyptian  Cotton  and  Oil  Co.,  L.  R.  4  Q.  B.  262  ; 
10  B.  &  S.  226  ;  38  L.  J.  Q.  B.  129  ;  17  W.  R.  498  ;  Lake  v.  King,  1  Lev.  241  ; 
1  Saund.  131  ;  Sid.  414;  1  Mod.  58.] 

But  merely  to  be  in  possession  of  a  copy  of  a  libel  is  no  crime,  unless  some  publication 
thereof  ensue.  R.  v.  Beere,  Carth.  409  ;  12  Mod.  219  ;  Holt,  422  ;  Salk.  417  ;  1  Ray. 
414.     And  see  11  Hargiave's  St.  Tr.  322,  sub  Entick  v.  Carrington. 

Although  husband  and  wife  are  generally  to  be  considered  one  person  in 
actions  of  tort  as  well  as  of  contract,^  still  the  plaintiff's  wife  is  sufficiently 
a  third  person  to  make  a  communication  to  her  of  words  defamatory  of  her 
husband,  a  publication  in  law.^  And  it  is  submitted  that  similarly  a  com- 
munication to  the  husband  of  a  charge  against  his  wife  is  a  sufficient  pub- 
lication. The  doubt  suggested  by  Jervis,  C.J.,  in  Wenman  v.  Ash,  must 
mean  that  he  considered  a  communication  to  the  husband  of  a  report  preju- 
dicial to  his  wife  was  prima  facie  privileged  as  being  a  friendly  act ;  not 
that  it  was  no  publication.     The  converse  case  of  the  defendant  and  his 

wife  has  never  been  decided  in  England.  Is  it  a  publication  if  a 
*  153    man  tells  his  wife  *  what  he  thinks  of  his  neighbors  1     Possibly 

such  a  communication  woiild  be  deemed  to  enjoy  the  same  privilege 
as  that  which  is  supposed  to  attach  to  matters  divulged  by  a  Eoman  Cath- 
olic to  his  priest  under  the  seal  of  confession.  The  question  seems  never  to 
have  arisen  in  England  ;  probably  because  in  every  such  case  there  has  been 
an  immediate  and  undoubted  publication  of  the  same  slander,  or  an  exag- 
gerated version  thereof,  by  the  wife  to  some  third  person  ;  for  which  the 
husband  would  be  equally  answerable  in  damages,  and  which  would  be 
easier  to  prove.  In  America  there  is  a  dictum,  that  the  delivery  of  a  hbel 
by  the  author  to  his  wife  "  in  confidence  "  is  privileged.® 

The  plaintiff  must  prove  a  publication  by  the  defendant  in  fact. 
That  the  third  person  had  the  opportunity  of  reading  the  libel  is 
not  sufficient,  if  the  jury  are  satisfied  that  he  did  not  in  fact  avail 
himself  thereof.  Even  though  it  is  clear  that  the  defendant  de- 
sired and  intended  publication. 

1  PhUlips  V.  Bamet,  1  Q.  B.  D.  436. 

2  Wenman  v.  Ash,  13  C.  B.  836  ;  22  L.  J.  C.  P.  190  ;  1  C.  L.  R.  592  ;  17  Jurist,  579. 

3  Trumbull  v.  Gibbons,  3  City  Hall  Recorder,  97. 

140 


PUBLICATION.  *  153 


Illvstrations. 

The  defendant  wrote  a  letter  and  gave  it  to  B.  to  deliver  to  the  plaintiif.  It  was 
folded,  but  not  sealed.  B.  did  not  read  it ;  but  conveyed  it  direct  to  the  plaintiif. 
Held,  no  publication.  Clutterbuck  v.  Chaffers,  1  Stark.  471  ;  Day  v.  Bream,  2  Moo. 
&  Eob.  54. 

The  defendant  threw  a  sealed  letter  addressed  to  the  plaintili',  "or  C,"  into  M.'s 
enclosure.  M.  picked  it  up  and  delivered  it  unopened  to  the  plaintiff  himself,  who 
alone  was  libelled.     No  publication.    FonviUe  v.  Nease,  Dudley,  S.  C.  303  (American). 

Posting  up  a  libellous  placard  and  taking  it  down  again  before  any  one  could  read  it, 
is  no  publication  ;  but  if  it  was  exhibited  long  enough  for  anyone  to  read  it,  then  it  is 
a  question  of  fact  for  the  jury  whether  any  one  actually  did  read  it. 

So  it  is  no  defence  that  the  third  person  was  not  intended  to 
overhear  the  slander  or  to  read  tlie  hbel,  if  in  fact  he  has  done 
so.  An  accidental  or  inadvertent  communication  is  quite  suffi- 
cient.i 

*  Illustrations.  *  154 

The  defendant  by  mistake  directed  and  posted  a  libellous  letter  to  the  plaintiff's 
employer  instead  of  to  the  plaintiff  himself.  Held  a  publication.  Fox  v.  Broderick, 
1 4  Ir.  C.  L.  Rep.  453. 

Rev.  Samuel  Paine  sent  his  servant  to  his  study  for  a  certain  paper  which  he  wished 
to  show  to  Brereton  ;  the  servant  bj'^  mistake  brought  a  libellous  epitaph  on  Queen 
Mary,  which  Paine  inadvertently  handed  to  Brereton,  supposing  it  to  be  the  paper  for 
which  he  sent ;  and  Brereton  read  it  aloud  to  Dr.  Hoyle.  This  would  probably 
be  deemed  a  publication  by  Paine  to  Brereton  in  a  civil  case  —  (Note  to  Mayne  v. 
Fletcher,  4  Man.  &  Ry.  312)  ;  but  would  not  be  sufficient  in  a  criminal  case.  R.  v. 
Paine  (1695),  5  Mod.  163.  For  in  a  criminal  case  it  is  essential  that  there  should  be  a 
guilty  intention.  R.  v.  Lord  Abingdon,  1  Esp.  228.  See  also  Brett  v.  Watson,  20 
W.  R.  723  ;  Blake  v.  Stevens,  4  F.  &  F.  232  ;  11  L.  T.  543. 

But  if  I  compose  or  copy  a  libel,  and  keep  the  manuscript  in  my  study,  intending 
to  show  it  to  no  one,  and  it  is  stMen  by  a  burglar  and  published  by  him  ;  it  is  sub- 
mitted that  there  is  no  publication  by  me,  either  in  civil  or  criminal  proceedings.  See 
Weir  V.  Hoss,  6  Alabama,  881.  But  it  would  be  a  publication  by  me,  if  through  any 
default  of  mine  it  got  abroad,  whether  through  my  negligence  or  folly. 

As  soon  as  the  manuscript  of  a  libel  has  passed  out  of  the  "de- 
fendant's possession  and  control,  it  is  deemed  to  be  published,  so 
far  as  the  defendant  is  concerned ;  ^  provided  it  does  not  pass 
immediately  and  unread  into  the  possession  and  control  of  the 
plaintiff. 

1  See  Shepheard  v.  Whitaker,  L.  R.  10  C.  P.  502  ;  32  L.  T.  402  ;  c.  I.  ante,  p.  7. 

2  Per  Holroyd,  J.,  in  R.  v.  Burdett,  4  B.  &  Aid.  143. 

141 


*  154  PUBLICATION. 


Illustrations. 

A  letter  is  published  as  soon  as  posted,  and  in  the  place  where  it  is  posted,  if  it  is  ever 
opened  anywhere  'by  any  third  person.  Ward  v.  Smith,  6  Bing.  749  ;  4  M.  &  P.  595  ; 
4  C.  &  P.  302  ;  Clegg  v.  Laffer,  3  Moore  &  Scott,  727  ;  10  Bing.  250  ;  Warren  v.  War- 
ren, 4  Tyr.  850  ;  1  C.  M.  &  R.  250  ;  Shipley  v.  Todhunter,  7  C.  &  P.  680. 

So  "if  I  send  a  manuscript  to  the  printer  of  a  periodical  publication,  and  do  not 

restrain  the  printing  and  publishing  of  it,  and  he  does  print  and  publish  it  in  that 

publication,  I  am  the  publisher,"  and  as  such  liable  to  an  action.     Per  Lord  Erskine 

in  Burdett  v.  Abbot,  5  Dow.  H.  L.  201  ;  14  East,  1.     See  also  R.  v.  Lovett,  9  C.  &  P. 

462. 

*  155  *  Every  one  who  requests,  procures,  or  commands  an- 
other to  publish  a  libel  is  answerable  as  though  he  pub- 
lished it  himself.  And  such  request  need  not  be  express,  but 
may  be  inferred  from  the  defendant's  conduct  in  sending  his 
manuscript  to  the  editor  of  a  magazine,  or  making  a  statement 
to  the  reporter  of  a  newspaper,  with  the  knowledge  that  they 
will  be  sure  to  publish  it,  and  without  any  effort  to  restrain  their 
so  doing.  And  it  is  not  necessary  that  the  defendant's  com- 
munication be  inserted  verbatim  ;  so  long  as  the  sense  and  sub- 
stance of  it  appear  in  print,  (a) 

This  rule  is  of  great  value  in  cases  where  the  words  employed  are  not 
actionable  when  spoken  ;  but  are  so  if  written.  Here  though  the  proprie- 
tor of  the  newspaper  is  of  course  liable  for  printing  them,  still  it  is  more 
satisfactory  if  possible  to  make  the  author  of  the  scandal  defendant.  An 
.action  of  slander  will  not  lie  ;  but  if  he  spoke  the  words  under  such  circum- 
stances as  would  ensure  their  being  printed,  or  if  in  any  other  way  he  re- 
quested or  contrived  their  publication  in  the  paper,  he  is  liable  in  an  action 
.of  libel  as  the  actual  publisher.     Quifacit  per  alium  facit  per  se. 

Illustrations. 

If  a  manuscript  in  the  handwriting  of  the  defendant  be  sent  to  the  printer  or  pub- 
lisher of  a  magazine,  who  prints  and  publishes  it,  the  defendant  will  be  liable  for  the 
full  damages  caused  by  such  publication,  although  there  is  no  proof  offered  that  he  ex- 
pressly directed  the  printing  and  publishing  of  such  manuscript.  Bond  v.  Douglas, 
7  C.  &  P.  626  ;  R.  v.  Lovett,  9  C.  &  P.  462  ;  Burdett  v.  Abbot,  5  Dow,  H.  L.  201  ; 
14  East,  1. 

And  this  is  so,  although  the  editor  has  cut  the  article  up,  omitting  the  most  libel- 
lous passages  and  only  publishing  the  remainder.  Tarpley  v.  Blabey,  2  Bing.  N.  C.  437  ; 
2  Scott,  642  ;  1  Hodges,  414. 

{a.)  Mere  verbal  alteration  in  printing  that  the  manuscript  should  be  produced 
is  not  enough  to  exempt  the  writer.  Stra-  at  the  trial  or  its  absence  accounted  for. 
der  V.  Snyder,  67  111.  404.     Still  it  is  said     lb. 

142 


IN  A  NEWSPAPER.  *  155 

So  where  Cooper  told  the  editor  several  good  stories  against  the  Eev.  J.  K.  and 
asked  the  editor  to  "  show  Mr.  K.  up  ; "  and  subsequently  the  editor  published  the 
substance  of  them  in  the  newspaper  ;  this  was  held  a  publication  by  Cooper,  although 
the  editor  knew  of  the  facts  from  other  quarters  as  well.  R.  v.  Cooper,  15  L.  J.  Q.  B. 
206  ;  8  Q.  B.  533.  And  see  Adams  v.  Kelly,  Ry.  &  Moo.  157  ;  and  the  judgments  of 
Byles  and  Mellor,  JJ.,  in  the  next  case,  L.  R.  4  Ex.  181-186. 

*  At  the  meeting  of  the  board  of  guardians,  at  which  reporters  were  present,  *  156 
it  was  stated  that  the  plaintiff  had  turned  his  daughter  out  of  doors,  and  that 
she  consequently  had  been  admitted  into  the  workhouse  and  had  become  chargeable  to 
the  parish.  Ellis,  one  of  the  guardians,  said,  "  I  hope  the  local  press  will  take  notice 
of  this  very  scandalous  case,"  and  requested  the  chairman,  Prescott,  to  give  an  outline 
of  it.  This  Prescott  did,  remarking,  "  I  am  glad  gentlemen  of  the  jjress  are  in  the 
room,  and  I  hope  they  will  give  publicity  to  the  matter."  Ellis  added,  "And  so  do  I." 
From  the  notes  taken  in  the  room  the  reporters  prepared  a  condensed  account  which  ap- 
peared in  the  local  newspapers,  and  which,  though  partly  in  the  reporters'  own  lan- 
guage, was  substantially  a  correct  report  of  what  took  place  at  the  meeting.  Held  by 
the  majority  of  the  Court  of  Exchequer  Chamber  (Montague  Smith,  Keating  and  Han- 
nen,  JJ.,  Byles  and  Mellor,  JJ.,  dissenting)  that  Martin,  B.,  was  wrong  in  directing 
the  jury  that  there  was  no  evidence  to  go  to  the  jury  that  Prescott  and  Ellis  had 
directed  the  publication  of  the  account  which  appeared  in  the  papers.  [N.  B.  —  Of  the 
six  judges  concerned,  three  were  of  one  opinion,  three  of  the  other.]  Parkes  v.  Prescott 
and  another,  L.  R.  4  Ex.  169  ;  38  L.  J.  Ex.  105  ;  17  W.  R.  773  ;  20  L.  T.  537. 

But  though  merely  composing  a  libel  without  publishing  it  is 
not  actionable,  merely  publishing  it,  not  having  composed  it,  is 
actionable.  "  The  mere  delivery  of  a  libel  to  a  third  person  by 
one  conscious  of  its  contents  amounts  to  a  publication  and  is  an 
indictable  offence."  ^  "  If  one  reads  a  libel,  that  is  no  publication 
of  it ;  or  if  he  hears  it  read,  it  is  no  publication  of  it ;  for  before 
he  reads  or  hears  it,  he  cannot  know  it  to  be  a  libel ;  or  if  he 
hears  or  reads  it,  and  laughs  at  it,  it  is  no  publication  of  it ;  or  if 
he  writes  a  copy  of  it,  and  does  not  publish  it  to  others,  it  is  no 
publication  of  the  libel ;  but  if  after  he  has  read  or  heard  it,  he 
repeats  it,  or  any  part  of  it,  in  the  hearing  of  others,  or  after  that 
he  knows  it  to  be  a  libel  he  reads  it  to  others,  that  is  an  unlaw- 
ful publication  of  it."  ^ 

Every  one  who  prints  or  publishes  a  libel  may  be  sued  by  the 
person  defamed  ;  and  to  such  an  action  it  is  no  defence  that  an- 
other wrote  it ;  it  is  no  defence  that  it  was  printed  or  pub- 
lished by  the  desire  or  procurement  *  of  another,  whether    *  157 
that  other  be  made  a  defendant  to  the  action  or  not.     All 
concerned  in  publishing  the  libel  or  in  procuring  it  to  be  pub- 

1  Per  Wood,  B.,  in  Maloneyv.  Bartley,  3  Camp.  213. 

2  Per  Lord  Coke  in  John  Lamb's  Case,  9  Rep.  60. 

143 


*  157  PUBLICATION. 

lished  are  equally  responsible  with  the  author.  And  printing  the 
libel  or  causing  it  to  be  printed  is  j^finid  facie  evidence  of  pub- 
lication.^  If  the  libel  appear  in  a  newspaper,  the  proprietor,  the 
editor,  the  printer,  and  the  author,  are  all  liable  to  be  sued,  either 
separately  or  together,  (a)  And  that  one  has  been  already  sued 
is  no  defence  to  an  action  brought  against  any  of  the  others  in 
respect  of  the  same  libel.^  Nor  should  the  fact  that  such  actions 
are  pending  be  taken  into  consideration  by  the  jury  in  assessing 
the  damage  arising  from  the  publication  by  the  present  defendant.^ 
In  all  eases  of  joint  publication  each  defendant  is  liable  for  all 
the  ensuing  damage.  And  there  is  no  contribution  between 
tort-feasors.  So  that  the  proprietor  of  a  paper  sued  jointly  with 
his  careless  editor  or  with  the  actual  composer  of  the  libel  cannot 
compel  either  of  his  co-defendants  to  recoup  him  the  damages, 
which  he  has  been  compelled  to  pay  the  plaintiff.* 

But  if  there  be  two  distinct  and  separate  publications  of  the 
same  libel,  a  defendant  who  was  concerned  in  the  first  publication, 
but  wholly  unconnected  with  the  second,  would  not  be  liable  for 
any  damages  which  he  could  prove  to  have  been  the  consequence 
of  the  second  publication  and  in  no  way  due  to  the  first. 

And  here  I  avIU  cite  the  remarks  of  Best,  C.  J.,  in  De  Crespigny  v.  Welles- 
ley,  5  Bing.  pp.   402-406.     "  If  a  man  receives  a  letter  with  authority 
from  the  author  to  publish  it,  the  person  receiving  it  will  not  be  justified, 
if  it  contains  libellous  matter,  in  inserting  it  in  the  newspapers.     No 

*  158    authority  from  a  third  *person  will  defend  a  man  against  an  action 

brought  by  a  person  who  has  suffered  from  an  unlawful  act.  If  the 
receiver  of  a  letter  publish  it  without  authority,  he  is,  from  his  own  motion, 
the  wilful  circulator  of  slander If  the  person  receiving  a  libel  may 

1  Burdett  v.  Abbot,  5  Dow,  H.  L.  201  ;  Baldwin  v.  Elphinston,  2  W.  Bl.  1037. 

2  Frescoe  v.  May,  2  F.  &  F.  123. 

3  Harrison  v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T.  (Old  S.)  298. 
*  Colburn  v.  Patmore,  1  C.  M.  &  R.  73  ;  4  Tyr.  677. 

(a)  The  newspaper  publisher  is  liable  such   that  the  publication  could   not   be 

though  he  was  ignorant  of  and  forbade  the  known  to  be  defamatory  at  the  newspaper 

publication.      Storey  v.  Wallace,    60   111.  office.     Smith   v.    Ashley,    11    Met.    367. 

51  ;    Detroit  Post  Co.    v.   McArthur,    16  And   punitive  damages   cannot  be   given 

Mich.  447  ;  Scripps??.  Reilly,  38  Mich.  10;  though  the  publication   is   libellous  if  it 

Dunn  V.   Hall,   1  Ind.   344 ;  Huff  v.  Ben-  was    published   without    the   defendant's 

nett,   4  Sandf.   120  ;  Curtis  v.  Mussey,  6  knowledge  and  without  negligence  on  his 

Gray,    261  ;    Commonwealth    v.    Morgan,  part.     Scrii)ps  v.  Reilly,  svpra.     Sccus,  if 

107    Mass.    199.       It   would    perhaps   be  he  was  negligent,     lb.    See  2J0st,  p.  302, 

otherwise  if  the  nature  of  the  article  were  note. 

144 


IN  A   NEWSPAPER.  *  158 

publisli  it  at  all,  he  may  publish  it  iu  whatever  manner  he  pleases ;  he  may- 
insert  it  in  all  the  journals,  and  thus  circulate  the  calumny  through  every 
region  of  the  globe.  The  effect  of  this  is  very  different  from  that  of  the 
repetition  of  oral  slander.  In  the  latter  case,  what  has  been  said  is  known 
only  to  a  few  persons,  and  if  the  statement  be  untrue,  the  imputation  cast 
upon  any  one  may  be  got  rid  of;  the  report  is  not  heard  of  beyond  the 
circle  in  which  all  the  parties  are  known,  and  the  veracity  of  the  accuser, 
and  the  previous  character  of  the  accused,  will  be  properly  estimated.  But 
if  the  report  is  to  be  spread  over  the  world  by  means  of  the  press,  the  ma- 
lignant falsehoods  of  the  vilest  of  mankind,  which  would  not  receive  the 
least  credit  where  the  author  is  known,  would  make  an  impression  which 
it  would  require  much  time  and  trouble  to   erase,  and  which  it  might  be 

difficult,   if  not  impossible,   ever  completely  to  remove Before  he 

gave  it  general  notoriety  by  circulating  it  in  print,  he  should  have  been 
prepared  to  prove  its  truth  to  the  letter  ;  for  he  had  no  more  right  to  take 
away  the  character  of  the  plaintiff,  without  being  able  to  prove  the  truth  of 
the  charge  that  he  had  made  against  him,  than  to  take  his  property  with- 
out being  able  to  justify  the  act  by  which  he  possessed  himself  of  it.  In- 
deed, if  we  reflect  on  the  degree  of  suffering  occasioned  by  loss  of  character, 
and  compare  it  with  that  occasioned  by  loss  of  property,  the  amount  of  the 
former  injury  far  exceeds  that  of  the  latter." 

Illustrations. 

A  man  may  thus  be  guilty  both  of  libel  and  of  slander  at  the  same  moment  and  by 
the  same  act  ;  as,  by  reading  to  a  public  meeting  a  defamatory  paper  written  by  an- 
other.    Hearne  v.  Stowell,  12  A.  &  E.  719;  6  Jur.  458;  4  P.  &  D.  696. 

Hudson  brought  the  manuscript  of  a  libellous  song  to  Morgan  to  have  1000  copies 
printed ;  Morgan  printed  1000  and  sent  300  to  Hudson's  shop.  Hudson  gave  several 
copies  to  a  witness  who  sung  it  about  the  streets.  It  did  not  appear  in  whose  writing 
the  manuscript  was  ;  but  probably  not  in  Hudson's.  Held  that  both  Hudson  and  Mor- 
gan had  published  the  libel.  Johnson  v.  Hudson  and  ilorgan,  7  A.  &  E.  233;  1  H. 
&  W.  680. 

*  By  the  38  Geo.  III.,  c.  71,  s.  17  (now  repealed),  the  proprietor  of  every  *  159 
newspaper  was  required  to  send  a  copy  of  every  issue  to  the  Stamp  Office  for 
Eevenue  purposes  ;  held  that  the  delivery  of  a  copy  to  the  officer  at  the  Stamp  Office 
was  a  sufficient  publication  of  a  libel  contained  in  it  to  render  the  proprietor  liable  to 
an  action,  "as  the  officer  of  the  Stamp  Office  would  at  all  events  have  an  op[iortunity 
of  reading  the  libel  himself.  R.  v.  Amphlit,  4  B.  &  C.  35  ;  6  D.  &  R.  125;  Mayne  v. 
Fletcher,  9  B.  &  C.  382;  4  Man.  &  Ry.  312. 

The  proprietor  of  a  newspaper  is  alwa)'s  liable  for  whatever  appears  in  its  columns; 
although  the  publication  may  have  been  made  without  his  knowledge  and  in  his  absence. 
R.  V.  Walter,  3  Esp.  21. 

But  now  in  criminal  cases,  see  6  &  7  Vict.  c.  96,  s.  7;  R.  v.  Holbrook  and  others, 
3  Q.  B.  D.  60  ;  4  Q.  B.  D.  42  ;  47  L.  J.  Q.  B.  35  ;  48  L.J.  Q.  B.  113;  26  W.  R.  144  ; 
27  W.  R,  313;  37  L.  T.  530;  39  L.  T,  536.       * 

10  145 


*  159  PUBLICATION. 

So  is  the  master  printer.     R.  v.  Dover,  6  How.  St,  Tr.  547. 

So,  in  England,  the  acting  editor  is  always  held  liable.  Watts  v.  Fraser  and  another, 
7  C.  &  P.  369;  7  Ad.  &  E.  223;  1  M.  &  Rob.  449;  2  N.  &  P.  157;  1  Jur.  671;  W.  AV. 
&  D.  451. 

In  America,  however,  though  the  proprietor  and  printer  of  a  paper  are  always  held 
liable,  the  editor  is,  it  would  seem,  allowed  to  plead  as  a  defence  that  the  libel  was 
inserted  without  his  orders  and  against  his  will.  The  Commonwealth  v.  Kneeland, 
Thacher's  C.  C.  346. 

Or  without  any  knowledge  on  his  part  that  the  article  was  a  libel  on  any  particular 
individual.     Smith  v.  Ashley  (1846),  52  Mass.  (11  Met.)  367. 

The  proprietor  of  a  newspaper  is  liable  even  for  an  advertisement  inserted  and  paid 
for  by  Bingham;  although  the  plaintiff  is  bringing  another  action  against  Bingham  at 
the  same  time.     Harrisons.  Pearce,  1  F.  &  F.  567;  32  L.  T.  (Old  S.)  298. 

"  If  you  look  upon  the  editor  as  a  person  who  has  published  a  libellous  advertise- 
ment incautiously,  of  coui-se  he  is  liable."  Per  Pollock,  C.B.,  in  Keyzor  and  another  v. 
Newcomb,  1  F.  &  F.  559. 

If  a  ('ountry  newspaper  cop}'-  and  publish  a  libellous  article  from  a  London  newspaper, 
the  country  paper  makes  the  article  its  own,  and  is  liable  for  all  damages  resulting 
from  its  publication  in  the  country.  The  fact  that  it  had  previously  appeared  in  the 
London  paper  is  no  defence,  though  it  may  tend  to  mitigate  the  damages.  Saunders 
V.  Mills,  3  M.  &  P.  520;  6  Bing.  213;  Talbutt  v.  Clark,  2  M.  &  Rob.  312. 

Evidence  that  the  plaintiff  had  in  a  previous  action  recovered  damages  against  the 
London  paper  for  the  same  article  is  altogether  inadmissible;  as  in  that  action  damages 
were  given  only  for  the  publication  of  the  libel  in  London.     Creev}'  v.  Carr,  7  C.  &  P. 

64;  and  see  Hunt  v.  Algar  and  others,  6  C.  &  P.  245. 
*  160  *  If  I  compose  a  libel  and  leave  it  in  my  desk  among  my  papers,  and  my 
clerk  surreptitiously  takes  a  copy  and  sends  it  to  the  newspapers,  it  is  sub- 
mitted that  he  alone  is  liable  for  the  damage  caused  thereby.  I  am  liable  only  to  such 
damages  as  the  jury  may  award  for  the  negligent  though  unintentional  publication  to 
my  clerk.  For  although  he  could  not  have  taken  a  copy,  had  I  not  first  written  the 
libel,  still  the  subsequent  republication  of  it  is  my  clerk's  own  independent  act,  for 
the  consequences  of  which  he  alone  is  liable.  Secus,  if  I  in  any  way  encouraged  or 
contrived  his  taking  a  copy,  knowing  that  he  would  be  sure  to  publish,  it  in  the  news- 
papers. 

So  again  every  sale  or  delivery  of  a  written  or  printed  copy  of 
a  libel  is  a  fresh  publication  ;  and  every  person  Avho  sells  or  gives 
away  a  written  or  printed  copy  of  a  libel  may  be  made  a  defend- 
ant, unless,  indeed,  he  can  satisfy  the  jury  that  he  was  ignorant 
of  the  contents.  The  onus  of  proving  this  lies  on  the  defendant, 
and  where  he  has  made  a  large  profit  by  selling  a  great  many 
copies  of  a  libel,  it  will  be  very  difficult  to  persuade  the  jury  that 
he  was  not  aware  of  its  libellous  nature.^  In  every  other  respect 
it  makes  no  difference  in  law  whether  the  dehvery  of  the  copy 
was  by  public  sale  or  merely  by  confidentially  showing  the  libel 

1  Chubb  V.  Flannagan,  6  C.  &  P.  431. 

146 


KEPETITION.  *  160 

to  a  friend.  Each  is  equally  a  publication.  But  the  jury  will, 
in  estimating  the  damages,  attach  great  importance  to  the  mode 
of  publication :  as  an  indiscriminate  public  sale  of  the  libel  must 
inflict  much  more  serious  injury  on  the  plaintiff's  reputation.  The 
defendant  could  not  afterwards  recall  or  contradict  his  state- 
ments, did  he  desire  to  do  so.^ 

Illustrations. 

The  plaintifTs  agent,  with  a  view  to  the  action,  called  at  the  office  of  the  defendant's 
newspaper,  and  made  them  find  for  him  a  copy  of  the  paper  that  had  appeared  seven- 
teen years  previously,  and  bought  it.  Held  that  this  was  a  fresh  publication  by  the 
defendant,  and  that  the  action  lay  in  spite  of  the  Statute  of  Limitations,  Duke  of 
Bmnswick  v.  Harmer,  14  Q.  B.  185  ;  19  L.  J.  Q.  B.  20;  14  Jur.  110;  3  C.  &  K. 
10. 

*  A  porter  who,  in  the  course  of  business,  delivers  parcels  containing  libel-     *  161 
lous  hand-bills,  is  not  liable  in  an  action  for  libel,  if  shown  to  be  ignorant  of 
the  contents  of  the  parcel.  Day  v.  Bream,  2  M.  &  Rob.  54,  for  he  is  but  doing  his 
duty  in  the  ordinary  way. 

A  sei-vant  carries  a  libellous  letter  for  his  master,  addressed  to  C.  It  is  his  duty  not 
to  read  it.  If  he  does  read  it,  that  is  a  publication  by  his  master  to  him,  although  he 
was  never  intended  to  read  it.  If  after  reading  it  he  delivers  it  to  C.  then  this  is  a 
publication  by  the  servant  to  C,  for  which  the  person  libelled,  not  being  C,  can  sue 
either  the  master,  or  the  servant,  or  both.  If  the  servant  never  reads  it,  but  simply 
delivers  it  as  he  was  bidden,  then  he  is  not  liable  to  any  action,  unless  he  either  knew 
or  ought  to  have  known  that  he  was  being  employed  illegally.  If  he  either  knew  or 
ought  to  have  known,  then  it  is  no  defence  for  him  to  plead  "I  was  only  obeying 
orders." 

The  defendant  kept  a  pamphlet  shop;  she  was  sick  and  upstairs  in  bed;  a  libel  was 
brought  into  the  shop  without  her  knowledge,  and  subsequently  sold  by  her  servant  on 
her  account.  She  was  held  criminally  liable  for  the  act  of  her  servant,  on  the  gi'ound 
that  "the  law  presumes  that  the  master  is  acquainted  with  what  his  servant  does 
in  the  course  of  his  business."  R.  v.  Dodd,  2  Seas.  Cas.  33;  Nutt's  Case,  Fitzg.  47; 
1  Barnard,  306. 

But  later  judges  would  not  be  so  strict;  the  sickness  upstairs,  if  properly  proved  by 
the  defendant,  would  now  be  held  an  excuse.  R.  v.  Almon,  5  Burr.  2686;  R.  v.  Gutch, 
Fisher,  and  Alexander,  Moo.  &  Mai.  433.  And  in  criminal  cases,  see  6  &  7  Vict.  c. 
96,  s.  7. 

A  rule  was  granted  calling  on  Wiatt  to  show  cause  why  he  should  not  be  attached 
for  selling  a  book  containing  a  libel  on  the  Court  of  King's  Bench.  The  book  was  in 
Latin.  On  filing  an  affidavit  that  he  did  not  understand  Latin,  and  on  giving  up  the 
name  of  the  printer  from  whom  he  obtained  it,  and  the  name  of  the  author,  the  rule 
was  discharged.     R.  v.  Wiatt  (1722),  8  Mod.  123. 

Every  repetition  of  a  slander  is  a  wilful  publication  of  it,  ren- 
dering the  speaker  liable  to  an  action.     "  Tale-bearers  are  as  bad 

1  See  per  Lord  Denman,  C.J.,  9  A.  &E.  149. 

147 


*  161  PUBLICATION. 

as  tale-makeis."  ^     It  is  no  defence  that  the  si^eaker  did 

*  162    not  originate  the  scandal,  but  heard  *  it  from  another,  even 

though  it  was  a  current  rumor  and  he  bond  fide  believed 
it  to  be  true.2  It  is  no  defence  that  the  speaker  at  the  time 
named  the  person  from  whom  he  heard  the  scandal.^  (a) 

This  proposition,  it  is  submitted,  correctly  states  the  existing  law  on  the 
point ;  but  it  would  certainly  not  have  been  accepted  as  clear  law  in  the 
last  century.  Great  difficulty  was  presented  by  the  fourth  resolution  in 
Lord  Northampton's  Case  (in  the  Star  Chamber,  1613),*  which  runs  as 
follows  :  —  "  In  a  private  action  for  slander  of  a  common  person,  if  J.  S. 
pubhsh  that  he  hath  heard  J.  N.  say,  that  J.  G.  was  a  traitor  or  thief;  in 
an  action  of  the  case,  if  the  truth  be  such,  he  may  justify.  But  if  J.  S. 
publish  that  he  hath  heard  generally  without  a  certain  author,  that  J.  G. 
was  a  traitor  or  thief,  there  an  action  sv.r  le  case  lieth  against  J.  S.  for  this, 
that  he  hath  not  given  to  the  party  grieved  any  cause  of  action  against  any, 
but  against  himself  who  published  the  words,  although  that  in  truth  he 
might  hear  tliem  ;  for  otherwise  this  might  tend  to  a  great  slander  of  an 
innocent ;  for  if  one  who  hath  Itvsam  'phantasiam,  or  who  is  a  drunkard,  or 
of  no  estimation,  speak  scandalous  words,  if  it  should  be  lawful  for  a  man 

1  Mrs.  Can.  "  But  surely  you  would  not  be  quite  so  severe  on  those  who  only  re- 
peat what  they  hear  ? " 

Sir  Pet.  "Yes,  Madam,  I  would  have  law  merchant  for  them  too;  and  in  all 
cases  of  slander  currency  whenever  the  drawer  of  the  lie  was  not  to  be  found,  the  in- 
jured parties  should  have  a  right  to  come  on  any  of  the  indorsers."—  The.  School  for 
Scandal. 

2  Watkin  V.  Hall,  L.  P.  3  Q.  B.  396;  37  L.  J.  Q.  B.  125;  16  W.  P.  857;  18  L.  T. 
561. 

8  M'Pherson  v.  Daniels,  10  B.  &  C.  270;  5  M.  &  P.  251. 
*  12  Rep.  134. 

(a)  The  contrary  rule  prevails  in  Maine  in  this  country.      Fowler  v.  Chichester, 

and  possibly  in  some  other  states,  if  the  26  Ohio  St.  9;  Haines  v.  Welling,  7  Ohio, 

repetition  is  without  malice  and  is  stated  253;    Kcnney  v.  McLaughlin,  5  Gray,  3; 

as  such  and  not  by  direct  charge.     Haynes  Stevens   v.    Hartwells,  11    Met.  542;    In- 

V.   Leland,  29  Maine,  233;  Stacy  v.  Port-  man   v.  Foster,  8    Wend.    602;   Treat   v. 

land  Pub.  Co.,  68  Maine,  279;  Church  v.  Browning,  4  Conn.  408;  Sans  v.  Joerris,  14 

Bridgman,  6  Mo.  190;  Jarnigan  v.  Flem-  Wis.  663;  States.  Butnian,  15  La.  An.  166; 

ing,  43  Miss.  710.     The  last  case  requires  Evans  v.  Smith,  5  T.  B.  Mon.  363;  Fitzger- 

the  party  who  repeats  to  do  so  in  the  same  aid  v.  Stewart,  53  Penn.  St.  343.    But  that 

words  as  the  original  and  to  give  the  au-  the  defendant  merely  repeated  what  he  had 

thor's  name,   and  even   then   the   author  heard  may  be  shown  in  mitigation.    Hinkle 

should   be   pecuniarily   responsible.      See  v.   Davenport,    38   Iowa,    355;    Fowler  v. 

also  Scott  V.  Peebles,  2  Smedes  &  M.  546;  Gilbert,  38  Mich.  292;  Huson  v.  Dale,  19 

Miller  v.  Kerr,  2  M'Cord,  285;  Johnson  v.  Mich.  17;  Hewitt  v.  Pioiiper  Press  Co.,  23 

St.  Louis  Despatch  Co.,  65  Mo.  539;  Lar-  Minn.  178;  Parker  v.  McQueen,  8  B.  Mon. 

kins  V.  Tarter,  3  Sneed,  681.     But  North-  16;  Fitzgerald  v.  Stewart,  supra. 
amptou's  Case  is   not   generally  followed 

148 


EEPETJTION.  *  1G2 

of  credit  to  report  them  generally  that  he  had  heard  scandalous  words, 
without  mentioning  of  his  author,  that  would  give  greater  color  and  proba- 
bility that  the  words  were  true  in  respect  of  the  credit  of  the  reporter,  than 
if  the  author  himself  should  be  mentioned." 

Now,  in  the  iirst  place,  the  reason  here  assigned  for  the  distinction 
obviously  applies  only  to  cases  in  which  the  originator  of  the  scandal  is  of 
less  credit  than  the  retailer  of  it,  and  is  known  to  be  so  by  those  to  whom 
it  is  retailed.  If  those  who  hear  the  tale  repeated  know  nothing  of  the 
person  cited  as  the  authority  for  it,  it  is  to  them  precisely  as  if  the  name 
were  omitted  altogether,  and  it  had  been  told  as  an  on  dit.  If,  on  the 
other  hand,  the  person  named  as  the  author  of  the  assertion  is  of  greater 
credit  and  respectabdity  than  the  reporter,  vouching  his  authority 
clearly  does  the  plaintiff's  reputation  a  greater  *  injury  than  if  no  *  163 
name  had  been  given  at  all.  And  even  in  the  case  where  the 
author  of  the  story  is  well  known  to  be  a  person  of  no  credit,  how  does  tliat 
excuse  the  defendant's  act  in  repeating  it  1  It  appears  to  me  to  make  it  all 
the  worse ;  he  cannot  even  plead  :  —  "I  had  it  on  good  authority  and 
reasonably  believed  it  true."  By  the  mere  repetition  of  it  the  defendant 
endorses  and  gives  credit  to  the  tale,  although  he  states  that  he  heard  it 
from  A.  B.  Moreover,  it  is  the  defendant  who  sets  the  tale  in  circulation, 
and  those  who  hear  it  from  him  will  repeat  it  everywliere,  and  cite  as  their 
authority,  not  A.  B.,  but  the  defendant  whom  we  presume  to  be  of  greater 
respectability  and  credit.  And  generally,  on  principle,  "  because  one  man 
does  an  unlawful  act  to  any  person,  another  is  not  to  be  permitted  to  do  a 
similar  act  to  the  same  person.  Wrong  is  not  to  be  justified,  or  even  ex- 
cused, by  wrong."  ^ 

Moreover,  the  twelfth  volume  of  Reports  is  a  book  of  questionable  au- 
thority; it  was  issued  after  Lord  Coke's  death,  compiled  by  some  one  else 
from  papers  which  Lord  Coke  had  neither  digested  nor  intended  for  the 
press.  ^ 

The  fourth  resolution,  as  reported,  appears  inconsistent  with  the  preced- 
ing resolution,  the  third ;  and  also  with  the  many  decisions  in  the  case. 
And  even  if  it  be  correctly  reported,  it  is  but  an  obiter  dictum,  for  the  Star 
Chamber  had  no  jurisdiction  over  private  slander,  and  the  case  before  them 
was  one  of  scandalum  magnatum,  which  branch  of  the  law  is  governed  by 
special  statutes  of  its  own.-^ 

Still  so  great  was  the  weight  justly  given  to  every  word  of  my  Lord 

1  Per  Best,  C.J.,  in  De  Crespigny  v.  Wellesley,  5  Bing.  404. 

2  See  the  remarks  of  Mr.  Hargrave,  11  St.  Tr.  301;  of  Holroyd,  J.,  in  Lewis  v. 
Walter,  4  B.  &  Aid.  614;  and  of  Parke,  J.,  in  M'Phersou  v.  Daniels,  10  B.  &  C.  275; 
5  M.  &  R.  251. 

8  See  ante,  pp.  133-136. 

149 


*  163  PUBLICATION. 

Coke,  that  this  resolution  was  assumed  to  be  law  in  Crawford  v.  Middleton,^ 
Davis  V.  Lewis,  2  and  Woolnoth  v.  Meadows.^  The  last  two  cases  decided 
that  at  all  events  it  is  too  late  to  name  the  author  of  the  report  for  the 
first  time  in  the  plea  of  justification ;  he  must  be  named  at  time  of  publi- 
cation to  raise  any  ground  of  defence  under  this  resolution. 

In  Maitland  v.  Goldney  (1802),*  Lord  Ellenborough  intimated 

*  164    that  the  doctrine  did  not  apply  where  the  *  reporter  knew  that  his 

informant,  whom  he  named,  had  retracted  the  charge  since  making 
it,  or  where  for  any  other  reason  the  reporter  at  the  time  of  repeating  the 
tale  knew  it  was  false,  and  unfounded,  Next,  in  Lewis  v.  Walter  (1821),* 
Holroyd  and  Best,  JJ.,  expressed  an  opinion  that  the  rule  had  been  laid 
down  too  largely  in  the  Earl  of  Northampton's  Case,  and  ought  to  be  quali- 
fied by  confining  it  to  cases  where  there  is  a  fair  and  just  reason  for  the 
repetition  of  the  slander  (that  is,  I  presume,  to  cases  where  the  repetition 
is  privileged).  Then,  in  February,  1829,  the  Court  of  Common  Pleas  de- 
cided that  in  actions  of  libel  there  was  no  such  rule.  De  Crespigny  v. 
Wellesley,"  in  which  case  Best,  C.J.,  says:  —  "Of  what  use  is  it  to  send 
the  name  of  the  author  with  a  libel  that  is  to  pass  into  a  country  where  he 
is  entirely  unknown  :  the  name  of  the  author  of  a  statement  will  not  in- 
form those  who  do  not  know  his  character,  whether  he  is  a  person  entitled 
to  credit  for  veracity  or  not ;  whether  his  statement  was  made  in  earnest  or 
by  way  of  joke ;  whether  it  contains  a  charge  made  by  a  man  of  sound 
mind  or  the  dehision  of  a  lunatic."  And  lastly,  in  M'Pherson  v.  Daniels,' 
the  rule  in  Lord  Northampton's  Case  was  directly  challenged  and  expressly 
overruled ;  and  it  was  held  that  for  a  defendant  to  prove  that  he  said  at 
the  time  that  he  heard  the  tale  from  A.,  and  that  A.  did  in  fact  tell  it  to 
the  defendant,  was  no  justification.  It  must  be  proved  that  the  defendant 
repeated  the  story  on  a  justifiable  occasion,  and  in  the  bo7id  fide  belief  in 
its  truth  [and  that  is  a  defence  of  privilege,  see  Bromage  v.  Prosser,  4  B.  & 
C.  247  ;  6  D.  &  R.  296  ;  1  C.  &  P.  475  ;  post,  c.  VIIL].  This  decision 
has  been  approved  of  and  followed  in  Ward  v.  Weeks ; «  and  in  Watkin  v. 
Hall.« 

And  in  America  the  law  appears  to  be  the  same.^"* 

1  1  Lev.  82.  2  7  T.  R.   17.  «  5  East,  463;  2  Smith,  28. 

4  2  East,  426.  5  4  B.  &  Aid.  615.  ^  5  Bing.  392. 

7  10  B.  &  C.  263;  5  M.  &  E.  251  (Michaelmas,  1829). 

8  7  Bing.  211;  4  M.  &  P.  796. 

9  L.  E.  3  Q.  B.  396;  37  L.  J.  Q.  B.  125;  16  W.  R.  857;  18  L.  T.  561. 

1"  Jarnigan  v.  Fleming,  43  Miss.  711;  Treat  v.  Browning,  4  Connecticut,  408;  Ran- 
kle V.  Meyers,  3  Yeates  (Pennsylvania)  518;  Dole  v.  Lyon,  10  Johns.  (New  York)  447; 
lumau  V.  Foster,  8  Wend.  602.  (a) 

(a)  Ante,  p.  162,  note. 

150 


REPETITION.  *  164 


Illustrations. 

Woor  told  Daniels  that  M'Pherson's  horses  had  been  seized  from  the  coach 
on  the  road,  that  he  had  been  arrested,  and  that  the  bailiffs  were  in  *  his  *  165 
house.  Daniels  went  about  telling  eveiy  one  "  Woor  says  that  M'Pherson's 
horses  have  been  seized  from  the  coach  on  the  road,  that  he  himself  has  been  arrested, 
and  that  the  bailififs  are  in  his  house."  Held  that  Daniels  was  liable  to  an  action  by 
M'Pherson  for  the  slander,  although  he  named  Woor  at  the  time  as  the  person  from 
whom  he  had  heard  it ;  that  it  was  no  justification  to  prove  that  Woor  did  in  fact  say 
so  :  defendant  must  go  further  and  prove  that  what  Woor  said  was  true.  M'Pherson 
V.  Daniels,  10  B.  &  C.  263;  5  M.  &  R.  251. 

The  defendant  said  to  the  plaintiff  in  the  presence  of  others  :  —  "  Thou  art  a  sheep- 
stealing  rogue,  and  Farmer  Parker  told  me  so."  Held  that  an  action  lay.  Gardiner  v. 
Atwater,  Say.  265  ;  Lewes  v.  Walter  (1617),  3Bulstr.  225  ;  Cro.  Jac.  406,  413  ;  Rolle's 
Rep.  444  ;  Meggs  v.  Griffith,  Cro.  Eliz.  400  ;  Moore,  408. 

The  defendant  said  to  the  plaintiff,  a  tailor,  in  the  presence  of  others  :  —  "I  heard 
you  were  run  away,"  scilicet,  from  your  creditors.  Held  that  an  action  lay,  Davis  v. 
Lewis,  7  T.  R.  17. 

Mr.  and  Mrs.  Davies  wrote  a  libellous  letter  to  the  Directors  of  the  London  Mis- 
sionary Society,  and  sent  a  copy  to  the  defendant,  who  published  extracts  from  it  in  a 
pamphlet.  The  defendant  stated  that  the  letter  was  written  by  Mr.  and  Mrs.  Davies, 
and  at  the  time  he  wrote  the  pamphlet  he  believed  all  the  statements  made  in  the  letter 
to  be  true.  Held  no  justification  for  his  publishing  it.  Tidman  v.  Ainslie  (1854),  10 
Exch.  63.  And  see  Mills  and  wife  v.  Spencer  and  wife  (1817),  Holt,  N.  P.  533  ;  Mc- 
Gregor V.  Thwaites  (1824),  3  B.  &  C.  24  ;  4  D.  &  R.  695. 

A  rumor  was  current  on  the  Stock  Exchange  that  the  chairman  of  the  S.  E.  Ry.  Co. 
had  failed  ;  and  the  shares  in  the  company  consequently  fell ;  thereupon  the  defendant 
said,  "  You  have  heard  what  has  caused  the  fall  —  I  mean,  the  rumor  about  the  S.  Eastern 
chairman  having  failed  ?  "  Held  that  a  plea  that  there  was  in  fact  such  a  rumor  was  no 
answer  to  the  action.  Watkin  v.  Hall,  L.  R.  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  125  ;  16 
W.  R.  857  ;  18  L.  T.  561.     See  Richards  v.  Richards,  2  Moo.  &  Rob.  557. 

If  at  a  meeting  of  a  board  of  guardians  charges  were  made  against  the  plaintiff,  this 
does  not  justify  the  owner  of  a  newspaper  in  publishing  them  to  the  world  :  it  is  no 
justification  to  plead  that  such  charges  were  in  fact  made,  and  that  the  alleged  libel 
was  an  impartial  and  accurate  report  of  what  took  place  at  such  meeting.  Purcell  v. 
Sowler,  1  C.  P.  D.  781  ;  2  C.  P.  D.  215  ;  46  L.  J.  C.  P.  308  ;  25  W.  R.  362  ;  36  L.  T. 
416  ;  Davison  v.  Duncan,  7  E.  &  B.  229  ;  26  L.  J.  Q.  B.  104  ;  3  Jur.  N.  S.  613  ; 
5  W.  R.  253  ;  28  L.  T.  (Old  S.)  265  ;  Popham  v.  Pickburn,  7  H.  &  N.  891  ;  31  L.  J. 
Ex.  133  ;  8  Jur.  N.  S.  179  ;  10  W.  R.  324  ;  5  L.  T.  846. 

*  And  here  note  a  great  distinction  between  libel  and  *  166 
slander.  The  actual  publisher  of  a  libel  may  be  an  inno- 
cent porter  or  messenger,  a  mere  hand,  unconscious  of  the  nature 
of  his  act ;  and  for  which  therefore  his  employers  shall  be  held 
liable,  and  not  he.  Whereas  in  every  case  of  the  republication 
of  a  slander,  the  publisher  acts  consciously  and  voluntaril}" ;  the 
repetition  is  his  own  act.  Therefore  if  I  am  in  any  way  concerned 
in  the  making  or  publishing  of  a  libel,  I  am  liable  for  all  the 

151 


*  166  PUBLICATION. 

damage  that  ensues  to  the  plamtiff  from  its  publication.  But  if 
I  slander  A.,  I  am  only  liable  for  such  damages  as  result  directly 
from  that  one  utterance  by  my  own  lips.  If  B.  hears  me  and 
chooses  to  carry  the  tale  to  A.'s  master,  that  is  B.'s  own  act ;  and 
should  A.'s  master  in  consequence  dismiss  him  from  his  employ- 
ment, B.  alone  is  answerable  for  that,  and  not  I.  In  an  action 
against  me  such  special  damage  would  be  too  remote.  For  each 
publication  of  a  slander  is  a  distinct  and  separate  act,  and  every 
person  repeating  it  becomes  an  independent  slanderer,  and  he 
alone  is  answerable  for  the  consequences  of  his  own  unlawful 
act. 

Thus,  by  the  law  of  England  as  it  at  present  stands,  the  person  who  in- 
vents a  lie  and  maliciously  sets  it  in  circulation  may  sometimes  escape  pun- 
ishment altogether,  while  a  person  who  is  merely  injudicious  may  be  liable 
to  an  action  through  repeating  a  story  which  he  believed  to  be  the  truth, 
as  he  heard  it  told  frequently  in  good  society.  For  if  I  originate  a  slander 
acfainst  you  of  such  a  nature  that  the  words  are  not  actionable  ]}er  se,  the 
utterance  of  them  is  no  ground  of  action,  unless  special  damage  follows.  If 
I  myself  tell  the  story  to  your  employer,  who  thereupon  dismisses  you,  you 
have  an  action  against  me ;  but  if  I  only  tell  it  to  your  friends  and  relations 
and  no  pecuniary  damage  ensues  from  my  own  communication  of  it  to  any 
one,  then  no  action  lies  against  me  ;  although  the  story  is  sure  to  get  round 
to  your  master  sooner  or  later.     The  unfortunate  man  whose  lips 

*  167    actually  utter  the  slander  to  your  master,  is  the  *  only  person  that 

can  be  made  defendant ;  for  it  is  his  publication  alone  which  is 
actionable  as  causing  special  damage.^  But  this  apparent  hardship  only 
arises  where  the  words  are  not  actionable  without  proof  of  special  damage. 
Where  the  words  are  actionable  per  se,  the  jury  find  the  damages  generally, 
and  will  judge  from  the  circumstances  which  of  the  various  defendants  is 
most  to  blame. 

There  are  two  apparent  exceptions  to  this  rule  :  — 
I.  Where  by  communicating  a  slander  to  A.,  the  defendant 
puts  A.  under  a  moral  necessity  to  repeat  it  to  some  other  person 
immediately  concerned  ;  here,  if  the  defendant  knew  the  relation 
in  which  A.  stood  to  this  other  person,  he  will  be  taken  to  have 
contemplated  this  result  when  he  spoke  to  A.  In  fact,  here  A.'s 
repetition  is  the  natural  and  necessary  consequence  of  the  defend- 
ant's communication  to  A. 

1  See  post,  c.  X. ,  Special  Damage. 

152 


REPETITION.  *  167 

II.  Where  there  is  evidence  that  the  defendant  though  he  spoke 
only  to  A.,  intended  and  desired  that  A.  should  repeat  his  words, 
or  expressly  requested  him  to  do  so  :  here  the  defendant  is  liable 
for  all  the  consequences  of  A.'s  repetition  of  the  slander;  for  A. 
thus  becomes  the  agent  of  the  defendant.^ 

Illustrations. 

"Weeks  was  speaking  to  Bryce  of  the  plaintiff  and  said,  "  He  is  a  rogue  and  a  swindler; 
I  know  enough  about  him  to  hang  him."  Bryce  repeated  this  to  Bryer  as  Weeks's  state- 
ment. Bryer  consequently  refused  to  trust  the  plaintiff.  Held  that  the  judge  was 
right  in  nonsuiting  the  plaintiff :  for  the  words  were  not  actionable  jjcr  se ;  and  the 
damage  was  too  remote.     Ward  v.  Weeks,  7  Bing.  211  ;  4  M.  &  P.  796. 

The  defendant's  wife  charged  Mrs.  Parkins  with  adultery.  She  indignantly  told 
her  husband,  her  natural  protector  :  he  was  unreasonable  enough  to  insist  upon  a  sepa- 
ration in  consequenc:e.  Held,  that  for  the  separation  the  defendant  was  not  liable. 
Parkins  et  ux.  v.  Scott  et  ux.  1  H.  &  C.  153  ;  31  L.  J.  Ex.  331;  8  Jur.  N.  S.  593  ;  10 
W.  R.  562  ;  6  L.  T.  394.     See  Dixon  v.  Smith,  5  H.  &  N.  450  ;  29  L.  J.  Ex.  125. 

H.   told    Mr.   Watkins  that  the  plaintiff,    his  wife's  dressmaker,    was   a 
*  woman  of  immoral  character;  Mr.  Watkins  naturally  informed  his  wife  of     *  168 
this  charge,  and  she  ceased  to  employ  the  plaintiff.     Held  that  the  plaintiiT's 
loss  of  Mrs.  Watkins's  custom  was  the  natural  and  necessary  consequence  of  the  de- 
fendant's communication  to  Mr.  Watkins.    Derry  v.  Handley,  16  L.  T.  263.    See  Gillett 
V.  Bullivant,  7  L.  T.  (Old  S.)  490;  Kendillon  v.  Maltby,  1  Car.  &  Marsh.  402. 

It  has  sometimes  been  held  on  the  principle  of  Volenti  non  fit  injuria, 
that  if  the  only  publication  proved  at  the  trial  be  one  brought  about  by  the 
plaintiff's  own  contrivance,  the  action  must  fail.  Thus,  in  King  v.  Waring 
et  ux.,^  Lord  Alvanley  decided,  that  if  a  servant,  knowing  the  character 
which  his  master  will  give  him,  procures  a  letter  to  be  written,  not  witli  a 
fair  view  of  inquiring  the  character,  but  to  procure  an  answer  upon  which 
to  ground  an  action  for  a  libel,  no  such  action  can  be  maintained.  So  in 
Smith  V.  Wood,^  where  the  plaintiff,  hearing  that  defendant  had  in  his 
possession  a  copy  of  a  libellous  caricature  of  the  plaintiff,  sent  an  agent  who 
asked  to  see  the  picture,  and  the  defendant  showed  it  him  at  his  request, 
Lord  Ellenborough  ruled  that  this  was  no  sufficient  evidence  of  publication 
and  nonsuited  the  plaintiff. 

But  these  cases  so  far  as  the  question  of  publication  merely  is  concerned, 
must  be  taken  to  be  overruled  by  The  Duke  of  Brunswick  v.  Harmer.* 
Whether  or  no  the  plaintiffs  conduct  in  himself  provoking  or  inviting  the 
publication  on  which  he  afterwards  bases  his  action  may  amount  to  a  ground 
of  privilege  as  excusing  the  publication  made,  is  a  different  question,  which 

^  As  to  Principal  and  Agent,  see  Law  of  Persons,  c.  XII.,  post,  pp.  360-365. 
2  5  Esp.  15.  33  Camp.  323. 

*  14  Q.  B.  185;  19  L.  J.  Q.  B.  20;  14  Jur.  110;  3  C.  &  K.  10. 

153 


*  168  PUBLICATION. 

will  be  discussed  post,  pp.  230-233.^  And  indeed  in  many  of  the  older 
cases  the  judges  say,  "  there  is  no  sufficient  publication  to  support  an  action 
for  a  libel,"  when  they  mean  in  modern  parlance  that  the  publication  was 
privileged  by  reason  of  the  occasion.  See  judgment  of  Best,  J.,  in  Fairman 
V.  Ives.^ 

1  See  "VVarr  v.  JoUy,  6  C.  &  P.  497;  Smith  v.  Mathews,  1  M.  &  Rob.  151;  Griffiths 
V.  Lewis,  7  Q.  B.  61;  14  L.  J.  Q.  B.  197;  9  Jur.  370;  8  Q.  B.  841;  15  L.  J.  Q.  B.  249; 
10  Jur.  711;  Force  v.  Warren,  15  C.  B,  N.  S.  806;  O'Donoghue  v.  Hussey,  Ir.  R.  5 
C.  L.  124;  Dwyer  v.  Esmonde,  2  L.  R.  Ir.  243. 

2  5  B.  &  Aid.  646;  1  D.  &  R.  252;  1  Chit.  85. 

154 


*  CHAPTER  VII. 


169 


JUSTIFICATION. 


The  truth  of  any  defamatory  words  is,  if  pleaded,  a  complete 
defence  to  any  action  of  libel  or  slander  (though  alone  it  is  not 
a  defence  in  a  criminal  trial).  The  onus,  however,  of  proving 
that  the  words  are  true  lies  on  the  defendant,  (a)  The  falsehood 
of  all  defamatory  words  is  presumed  in  the  plaintiff's  favor,  and 
he  need  give  no  evidence  to  show  they  are  false  ;  (6)  but  the 
defendant  can  rebut  this  presumption  by  giving  evidence  in 
support  of  his  plea  that  the  words  are  true  in  substance  and 
in  fact.  If  the  jury  are  satisfied  that  the  words  are  true,  they 
must  find  for  the  defendant,  though  they  feel  sure  that  he  spoke 
the  words  spitefully  and  maliciously,  (c)  On  the  other  hand,  if 
the  words  are  false,  the  jury  must  find  for  the  plaintiff,  although 
they  are  satisfied  that  the  defendant  bond  fide  and  reasonably 
believed  the  words  to  be  true  at  the  time  he  uttered  them,  (c?) 


(a)  The  result  is  that  the  defendant  is 
entitled  to  open  and  close.  Ransone  v. 
Christian,  56  Ga.  351  ;  s.  c.  49  Ga.  491 ; 
Heilman  v.  Shanklin,  60  Ind.  424,  445  ; 
TuU  V.  David,  27  Ind.  377.  Secus  in 
Missouri.  Buckley  v.  Knapp,  48  Mo.  152. 
And  probably  in  Massachusetts, 

(6)  Proctor  v.  Houghtaling,  37  Mich. 
41  ;  Russell  v.  Anthony,  21  Kans.  450. 

(c)  Foss  V.  Hildreth,  10  Allen,  76  ; 
McBee  v.  Fulton,  47  Md.  403,  428.  The 
tnith  is  a  defence  to  a  civil  action,  regard- 
less too  of  the  occasion.  So  far  as  Car- 
penter V.  Bailey,  56  N.  H.  283  ;  s.  c.  53 
N.  H.  590,  may  suggest  a  different  rule  it 
is  misleading  unless  founded  upon  statute. 
The  occasion  (as  rebutting  malice)  in  addi- 
tion to  the  truth  may  be  important  in 
criminal  cases  ;  and  that  is  all  that  State 
V.  Burnham,  9  N.  H.  45,  which  was  fol- 
lowed in  Carpenter  v.  Bailey,  can  be  taken 
to  decide. 

(c?)  Powei-s    V.    Gary,    64    Maine,    9 ; 


Smart  v.  Blanchard,  42  N.  H.  137;  AVood- 
ruff  V.'  Richardson,  20  Conn.  238  ;  Wil- 
son V.  Fitch,  41  Cal.  363  ;  Grimes  v. 
Coyle,  6  B.  Mon.  301.  Belief  in  the  truth 
of  the  charge  is  no  justification,  though 
such  belief  may  have  been  induced  by 
misconduct  on  the  part  of  the  plaintiff, 
if  that  fall  short  of  what  the  defendant 
has  charged.  Clark  v.  Brown,  116  Mass. 
504  ;  Parkhurst  v.  Ketchum,  6  Allen,  406  ; 
Watson  V.  Moore,  2  Gush.  133  ;  Gillis  v. 
Peck,  20  Conn.  228.  It  follows  that  re- 
ports of  the  tnith  of  the  charge  are  not 
admissible  in  justification.  Richardson  v. 
Roberts,  23  Ga.  215  ;  Lehning  v.  Hewett, 
45  111.  23  ;  Moberly  v.  Preston,  8  Mo.  462  ; 
Dame  v.  Kenney,  25  N.  H.  318  ;  Mapes 
V.  Weeks,  4  Wend.  659  ;  Kennedy  v.  Gif- 
fard,  19  Wend.  296  ;  Hampton  v.  Wilson, 
4  Dev.  468  ;  Freeman  v.  Price,  2  Bailey, 
115.  Upon  the  question  of  mitigation, 
see  post,  p.  305,  note.  Nor  can  the  de- 
fendant show  that  the  plaintiff  has  been 

155 


169 


JUSTLFICATION. 


But  the  whole  (a')  libel  must  be  proved  true,  not  a  part  merely. 

The  justification  must  be  as  broad  as  the  charge,  and  must  justify 

the  precise  charge.  (<5>)     If  any  material  part  be  not  proved  true, 
the    plaintiff   will   recover   damages   in   respect    of    such 

*  170    part.i  (<?)     Thus  where  *a  libellous  paragraph  in  a  news- 
paper is  introduced  by  a  libellous  heading,  it  is  not  enough 

to  prove  the  truth  of  the  facts  stated  in  the  paragraph,  defendant 

must  also  prove  the  truth  of  the  heading.^ 

But  where  the  gist  of  the  libel  consists  of  one  specific  charge 

which  is  proved  to  be  true,  defendant  need   not  justify  every 

expression  which  he  has  used  in  commenting  on  the  plaintiff's 

1  Weaver  v.  Lloyd,  1  C.  &  P.  295  ;  2  B.  &  C.  678  ;  4  D.  &  R.  230  ;  Ingram  v. 
Lawson,  5  Bing.  N.  C.  66  ;  6  Scott,  775  ;  7  Dowl.  125  ;  1  Am.  387  ;  3  Jur.  73 ; 
6  Bing.  N.  C.  212  ;  8  Scott,  471  ;  4  Jur.  151  ;  9  C.  &  P.  326. 

2  Mountney  v.  Watton,  2  B.  &  Ad.  673  ;  Chalmers  v.  Shackell,  6  C.  &  P.  475. 

(a)  That  is,  all  that  is  material  ;  and 
the  same  is  true  of  slander.  If  a  habit  of 
committing  a  particular  crime  be  charged, 
particular  instances  may  be  proved.  Tal- 
madge  v.  Baker,  22  Wis.  625. 

(b)  Skinner  v.  Powers,  1  Wend.  451 ; 
Stiles  V.  Comstock,  9  How.  Pr.  48  ;  Bur- 
ford  V.  Wible,  32  Penn.  St.  95  ;  Heilman 
V.  Shanklin,  60  Ind.  424,  441;  Whitte- 
more  v.  Weiss,  33  Mich.  348  ;  Palmer  v. 
Smith,  21  Minn.  419  ;  McGregor  v.  Greg- 
ory, 11  Mees.  &  W.  287;  Carpenter  v. 
Bailey,  56  N.  H.  283  ;  s.  c.  53  N.  H.  590. 

(c)  Loveland  v.  Hosmer,  8  How.  Pr. 
215;  Heilman  v.  Shanklin,  supra;  Tull 
V.  David,  27  Ind.  377  ;  Whittemore  v. 
Weiss,  siipra.  See  Clark  v.  Brown,  116 
Mass.  504.  But  a  justification  may  go  to 
part  of  the  charge,  if  that  be  severable, 
for  the  purpose  of  reducing  the  damages. 
Stacy  V.  Portland  Pub.  Co.,  68  Maine, 
279.  The  justification  should  state  the 
facts  in  detail,  so  far  as  they  are  material. 
Van  Ness  v.  Hamilton,  19  Johns.  349  ; 
Andrews  v.  Van  Duzer,  11  Johns.  38 ; 
Billings  V.  Waller,  28  How.  Pr.  97 ;  Swann 
V.  Eaiy,  3  Blackf.  298  ;  Snow  ■;;.  Witcher, 
9  Ired.  346  ;  Kent  v.  David,  3  Blackf.  301; 
Steele  v.  Phillips,  10  Humph.  461 ;  Orme 
V.  Lodge,  3  Har.  &  J.  83.  Pnsf,  p.  177, 
note  2.  The  plea  should  admit  the  speak- 
ing of  the  words.  Davis  v.  Mathews, 
2  Ohio,  257;  Anibal  v.  Hunter,  6  How. 
255. 


guilty  of  another  or  of  the  same  offence  at 
another  time  than  that  charged,  especially 
after  the  words  were  spoken.  Beggarly  v. 
Craft,  31  Ga.  309  ;  Sharpe  v.  Stephenson, 
12  Ired.  348  ;  Burford  v.  Wible,  32  Penn. 
St.  95  ;  Ridley  v.  Perry,  16  Maine,  21 ; 
Pallet  V.  Sargent,  36  N.  H.  496  ;  Whita- 
ker  V.  Carter,  4  Ired.  461 ;  Self  v.  Gard- 
ner, 15  Mo.  480  ;  Stiles  v.  Comstock,  9 
How.  Pr.  48  ;  Palmer  v.  Haight,  2  Barb, 
210  ;  Watters  v.  Smoot,  11  Ired.  315 ; 
Smith  V.  Buckecker,  4  Rawle,  295  ;  Long 
V.  Brougher,  5  Watts,  439.  Further,  in 
regard  to  evidence  inadmissible  to  support 
a  plea  of  the  truth,  see  Luthan  v.  Berry, 
1  Porter  (Ala.),  110;  Chapman  v.  Ordwa}', 
5  Allen,  593  ;  Bisbey  v.  Shaw,  15  Barb. 
578  ;  Maybre  v.  Fisk,  42  Barb.  326  ;  Bar- 
field  V.  Britt,  2  Jones,  41 ;  Anonymous, 
1  Hill  (S.  Car.),  251 ;  Skinner  v.  Grant, 
12  Vt.  456.  Of  course  drunkenness  is  no 
excuse.  McKee  v.  Ingalls,  4  Scam.  30  ; 
Reed  v.  Harper,  25  Iowa,  87.  Though  it 
may  be  ground  for  mitigation.  Howell  v. 
Howell,  10  Ired.  84.  Nor  is  it  a  justifica- 
tion that  the  words  were  .spoken  in  jest. 
Hatch  V.  Porter,  2  Gilm.  725  ;  McKee  v. 
Ingalls,  supra;  Long  v.  Eakle,  4  Md. 
454  ;  Donoghue  v.  Hayes,  Hayes  (Ire- 
land), 265.  Unless  of  course  they  were 
both  so  intended  and  so  understood  by  all 
present  ;  no  attempt  being  made  to  stab 
the  plaintiff's  character.  Donoghue  v. 
Hayes. 

156 


JUSTIFICATION.  *  170 

conduct.  Nor,  if  the  substantial  imputation  be  proved  true,  v/ill 
a  slight  inaccuracy  in  one  of  its  details  prevent  defendant's  suc- 
ceeding, provided  such  inaccuracy  in  no  way  alters  the  com- 
plexion of  the  affair,  and  would  have  no  different  effect  on  the 
reader  than  that  which  the  literal  truth  would  produce. ^  If 
epithets  or  terms  of  general  abuse  be  used  which  do  not  add  to 
the  sthig  of  the  charge,  they  need  not  be  justified  ;2  but  if  they 
insinuate  some  further  charge  in  addition  to  the  main  imputation, 
or  imply  some  circumstance  substantially  aggravating  such  main 
imputation,  then  they  must  be  justified  as  well  as  the  rest.'^  In 
such  a  case  it  will  be  a  question  for  the  jury  whether  the  sub- 
stance (a)  of  the  libellous  statement  has  been  proved  true  to 
their  satisfaction,  or  whether  the  fact  not  justified  amounts  to  a 
separate  charge  or  imputation  against  the  plaintiff,  substantially 
distinct  from  the  main  charge  or  gist  of  the  libel,  or  at  least 
amounts  to  a  material  aggravation  of  such  main  charge.^ 
*  "  It  would  be  extravagant,"  says  Lord  Denman,^  "  to  say  *  171 
that  in  cases  of  libel  every  comment  upon  facts  requires  a 
justification.  But  a  comment  may  introduce  independent  facts, 
a  justification  of  which  is  necessary.  A  comment  may  be  the 
mere  shadow  of  the  previous  imputation ;  but  if  it  infers  a  new 
fact,  the  defendant  must  abide  by  that  inference  of  fact,  and  the 
fairness  of  the  comments  must  be  decided  upon  by  the  jury."  ^ 

So  in  criminal  cases,  if  the  whole  of  the  plea  of  justification  be 
not  proved,  the  Crown  will  be  entitled  to  a  verdict.'^ 

1  Alexander  v.  N.E.  Rail.  Co.,  34  L.  J.  Q.  B.  152  ;  11  Jur.  N.  S.  619  ;  13  W.  R. 
651  ;  6  B.  &  S.  340  ;  cf.  Stockdale  v.  Tarte,  4  A.  &  E.  1016  ;  Blake  v.  Stevens,  4  F. 
&  F.  239  ;  11  L.  T.  544. 

2  Edwards  v.  Bell,  1  Bing.  403  ;  Morrison  v.  Harmer,  3  Bing.  N.  C.  767  ;  4  Scott, 
533  ;  3  Hodges,  108. 

8  Per  Maule,  J.,  in  Helsham  v.  Blackwood,  11  C.  B.  129  ;  20  L.  J.  C.  P.  192  ; 
15  Jur.  861. 

*  Warman  v.  Hine,  1  Jur.  820  ;  Weaver  v.  Lloyd,  2  B.  &  C.  678  ;  4  D.  &  R.  230  ; 
1  C.  &  P.  295  ;  Behrens  v.  Allen,  8  Jur.  N.  S.  118  ;  3  F.  &  F.  135. 

6  In  Cooper  v.  Lawson,  8  Ad.  &  E.  753 ;  1  P.  &  D.  15  ;  1  W,  W,  &  H.  601;  2  Jur. 
919. 

^  And  see  Lefroy  v.  Burnside,  4  L.  R.  Ir.  556. 

T  R.  V.  Newman,  1  E.  &  B.  268,  558  ;  22  L.  J.  Q.  B.  156  ;  Dears.  C.  C.  85  ;  17  Jur. 
617  ;  3  C.  &  K.  252. 

(a)  Wilson  v.  Nations,  5  Yerg.  211. 

157 


171  JUSTIFICATION. 


Illustrations. 

The  editor  of  one  newspaper  called  the  editor  of  another  "  a  felon  editor."  Justifica- 
tion that  the  plaintiff  had  been  convicted  of  felony  and  sentenced  to  twelve  months' 
imprisonment.  The  Court  of  Appeal  held  the  plea  bad  for  not  averring  that  the  plain- 
tiff was  still  enduring  the  punishment  when  the  words  were  uttered  ;  for  that  by  the 
9  Geo.  IV.  c.  32,  s.  3,  a  person  who  has  been  convicted  of  felony  and  who  has  under- 
gone the  full  punishment  is  in  law  no  longer  a  felon.  Leymau  v.  Latimer,  3  Ex.  D. 
15,  352  ;  47  L.  J.  Ex.  470  ;  25  W.  R.  751  ;  26  W.  R.  305  ;  37  L.  T.  360,  819  ;  14  Cox, 
C.  C.  51. 

Words  complained  of  that  the  plaintiff  was  a  "  libellous  journalist."  Proof  that  he 
had  libelled  one  man,  who  had  recovered  from  him  damages  £100,  held  insufficient. 
Wakley  v.  Cooke  and  Healey,  4  Ex.  511  ;  19  L.  J.  Ex.  91. 

Libel  complained  of :  —  that  no  boys  had  for  the  last  seven  years  received  instruc- 
tion in  the  Free  Grammar  School  at  Lichfield  of  which  plaintiff  was  head  master,  and 
that  the  decay  of  the  school  seemed  mainly  attributable  to  the  plaintiff^s  violent  con- 
duct. Plea  of  justification  that  no  boys  had  in  fact  received  instniction  in  the  school 
for  the  last  seven  years,  and  that  the  plaintiff  had  been  guilty  of  violent  conduct  tow- 
ards  several  of  his  scholars,  was  held  bad  on  special  demurrer,  because  it  wholly 
omitted  to  connect  the  decay  of  the  school  with  the  alleged  violence,  and  therefore  left 
the  second  part  of  the  libel  unjustified.     Smith  v.  Parker,  13  M.  &  W.  459;  14  L. 

J.  Ex.  52  ;  2  D.  &  L.  394. 
*  172  *  '^^^^  plaintiff,  an  architect,  had  been  employed  by  a  certain  committee  to 
superintend  and  caiTy  out  the  restoration  of  Skirlaugh  Church  ;  thereupon 
the  defendant,  who  had  no  manner  of  interest  in  the  question  of  the  employment  of 
plaintiff  to  execute  the  work,  wrote  a  letter  to  a  member  of  the  committee  sajdng :  "  I 
.see  that  the  restoration  of  Skirlaugh  Church  has  fallen  into  the  hands  of  an  architect 
who  is  a  Wesleyan  and  can  have  no  experience  in  church  work.  Can  you  not  do 
something  to  aveit  the  irreparable  loss  which  must  be  caused  if  any  of  the  masonry  of 
this  ancient  gem  of  art  be  ignorantly  tampered  with  ?  "  In  an  action  for  libel  the  de- 
fendant by  way  of  justification  alleged  "  that  the  facts  contained  in  the  letter  are  true, 
and  the  opinions  expressed  in  it,  whether  right  or  wrong,  were  honestly  held  and  ex- 
pres.sed  by  the  defendant,"  and  in  his  particulars  under  this  plea  "  that  the  plaintiff 
cannot  show  experience  in  church  work,  i.e.,  of  the  kind  which  in  the  opinion  of  the 
defendant  was  requisite." 

mid,  that  the  letter  was  a  libel  on  the  plaintiff  in  the  way  of  his  profession  or 

calling. 

That  the  justification  set  up  was  no  justification  at  all,  because  the  letter  obviously 
meant  that  the  plaintiff  could  show  no  experience  in  the  work  which  he  had  been 
employed  by  the  committee  to  execute.  Verdict  for  the  plaintiffs.  Damages,  £50. 
Botterill  and  another  v.  Whytehead,  41  L.  T.  588. 

Libel  complained  of :  —  that  the  plaintiff  had  "  bolted,"  leaving  some  of  the  trades- 
men of  the  town  to  lament  the  fashionable  character  of  his  entertainment.  Proof  that 
lie  had  qidtUd  the  town  leaving  some  of  his  bills  unpaid,  held  insufficient.  O'Brien 
V.  Bryant,  16  M.  &  W.  168  ;  16  L.  J.  Ex.  77  ;  4  D.  &  L.  341. 

Libel  complained  of :  —  that  the  plaintiff,  having  challenged  his  opponent  to  a  duel, 

spent  the  whole  of  the  night  preceding  in  practising  with  his  pistol,  and  killed  his 

opponent,  and  was  therefore  guilty  of  murder.     Proof  that  the  plaintiff  had  killed  his 

opponent,  and  had  been  tried  for  murder,  held  insufficient.     For  the  charge  of  pistol 

158 


JUSTIFICATION.  *  172 

practising  was  considered  a  separate  and  substantial  charge,  and  it  was  not  justified, 
Helsham  v.  Blackwood,  11  C.  B.  128  ;  20  L.  J.  C.  P.  187  ;  15  Jur.  861. 

The  libel  complained  of  was  headed  —  "  How  Lawyer  B.  treats  his  clients,"  followed 
by  a  report  of  a  particular  case  in  which  one  client  of  Lawyer  B.  had  been  badly  treated. 
That  particular  case  was  proved  to  be  correctly  reported,  but  this  was  held  insufficient 
to  justify  the  heading,  which  implied  that  Lawyer  B.  generally  treated  his  clients 
badly.  Bishop  v.  Latimer,  4  L.  T.  775.  See  also  Mountney  v.  Walton,  2  B.  &  Ad. 
673  ;  Chalmers  v.  Shackell,  6  C.  &  P.  475  ;  Clement  v.  Lewis  and  others,  3  Brod.  & 
Bing.  297  ;  7  Moore,  200  ;  3  B.  &.  Aid.  702. 

Libel  complained  of :  —  that  the  plaintiff,  a  proctor,  had  three  times  been 
*  suspended  from  practice,  for  extortion.     Proof  that  he  had  once  been  so  sus-     *  173 
pended,  was  held  insufficient.     Clarkson  v.  Lawson,  6  Bing.  266  ;  3  M.  &  P. 
605  ;  6  Bing.  587  ;  4  M.  &  P.  356.     See  also  Johns  v.  Gittings,  Cro.  Eliz.  239  ;  Good- 
burne  v.  Bowman  and  others,   9   Bing.  532  ;    Clarke  v.  Taylor,   2  Bing.  N.  C.  654  ; 
3  Scott,  95  ;  2  Hodges,  65  ;  Blake  v.  Stevens  and  others,  4  F.  &  F.  232  ;  11  L.  T.  543. 

But  when  the  libel  complained  of  exposed  the  "homicidal  tricks  of  those  impudent 
and  ignorant  scamps  who  had  the  audacity  to  pretend  to  cure  all  diseases  with  one 
kind  of  pill"  —  asserted  that  "several  of  the  rotgut  rascals  had  been  convicted  of 
manslaughter  and  fined  and  imprisoned  for  killing  people  with  enormous  doses  of  their 
universal  vegetable  boluses,"  and  characterised  the  plaintiffs'  system  as  "  one  of  whole- 
sale poisoning  ;"  and  it  was  proved  at  the  trial  "that  the  plaintiff's  pills  when  taken 
in  large  doses,  as  recommended  by  the  plaintiffs,  were  highly  dangerous,  deadly  and 
poisonous,"  and  "that  two  persons  had  died  in  consequence  of  taking  large  quantities 
of  them  ;  and  that  the  people  who  had  administered  these  pills  were  tried,  convicted, 
and  imprisoned  for  the  manslaughter  of  these  two  persons,"  —  this  was  held  a  sufficient 
justification,  although  the  expressions  "scamps,"  "rascals,"  and  "wholesale  poison- 
ing "  had  not  been  fully  substantiated :  the  main  charge  and  gist  of  the  libel  being 
amply  sustained.  Morrison  v.  Harmer,  3  Bing.  N.  C.  767 ;  4  Scott,  533  ;  3  Hodges, 
108  ;  Edsall  v.  Russell,  4  M.  &  Gr.  1090  ;  5  Scott,  N.  R.  801  ;  2  Dowl,  N.  S.  641  ; 
12  L.  J,  C.  P.  4  ;  6  Jur.  996. 

The  libel  complained  of  was  a  notice  published  by  a  railway  company  to  the  effect 
that  the  plaintiff  had  been  convicted  of  riding  in  a  train  for  which  his  ticket  was  not 
available,  and  was  sentenced  to  be  fined  £1,  or  to  three  weeks'  imprisonment  in  default 
of  payment.  Proof  that  he  had  been  so  convicted  and  fined  £1,  and  sentenced  to  a 
fortnight's  imprisonment  in  default  of  payment,  held  sufficient ;  as  the  error  could  not 
have  made  any  difference  in  the  effect  which  the  notice  would  produce  on  the  mind  of 
the  public.  Alexander  v.  N.  E.  R.  Co.,  34  L.  J.  Q.  B.  152  ;  11  Jur.  N.  S.  619  ;  13 
W.  R.  651  ;  6  B.  &  S.  340.  But  see  Gwj-nn  v.  S.  E.  R.  Co.,  18  L.  T.  738  ;  Biggs  v. 
G.  E.  R.  Co.,  16  W,  R.  708  ;  18  L.  T.  482.  See  also  Lay  v.  Lawson,  4  Ad.  &  E.  795; 
Edwards  v.  Bell  and  others,  1  Bing.  403  ;  Tighe  v.  Cooper,  7  E.  &  B.  639  ;  26  L.  J. 
Q.  B.  215  ;  3  Jur.  N.  S.  716. 

This  rule  that  the  whole  of  the  libel  must  be  justified  to  enable 
the  defendant  to  succeed  applies  to  all  cases  of  reported  speeches 
or  repetitions  of  slander.  Thus,  if  the  libel  complained  of 
be,  "  A.B.  said  that  the  plaintiff  *  had  been  guilty  of  fraud,  *  174 
etc.,"  it  is  of  no  avail  to  plead  that  A.B.  did  in  fact  make 
that  statement  on  the  occasion  specified.  Each  repetition  is  a 
fresh  defamation,  and  the  defendant  by  repeating  A.B.'s  words 

159 


*  174  JUSTIFICATION. 

has  made  them  his  own,  and  is  legally  as  liable  as  if  he  had  in- 
vented the  story  himself.  The  only  plea  of  justification  wliich 
will  be  ail  answer  to  the  action  must  not  merely  allege  that  A.B. 
did  in  fact  say  so,  but  must  go  on  to  aver  with  all  necessary 
particularity  that  every  word  which  A.B.  is  reported  to  have  said 
is  true  in  substance  and  in  fact.  In  short,  a  previous  publication 
by  another  of  the  same  defamatory  words  is  no  justification  for 
their  repetition.^     Still  less  is  it  any  evidence  of  their  truth. 2 

The  opposite  doctrine  was  laid  down  in  the  Earl  of  iSTorthampton's  case, 
hut  the  fourth  resolution  in  that  case  never  professed  to  apply  to  actions  of 
Hbel,  but  to  actions  for  slander  only ;  and  even  in  actions  of  slander  it 
must  now  be  taken  not  to  be  law.^ 

This  rule  sometimes  works  an  apparent  hardship  upon  newspaper  pro- 
prietors who,  in  the  ordinary  course  of  their  business  have  presented  to  the 
public  a  full,  true,  and  impartial  account  of  what  really  took  place  at  a 
public  meeting,  considering  no  doubt  that  thereby  they  were  merely  doing 
their  duty.  But  the  consequence  of  publishing  in  the  papers  calumnies 
uttered  at  some  political  meeting,  or  at  a  vestry  board,  might  be  most  in- 
jurious to  the  person  calumniated.  The  original  slander  might  not  be 
actionable  jier  se,  or  the  communication  may  be  privileged,  so  that  no  action 
lies  against  the  speaker ;  moreover  the  meeting  may  have  been  thinly  at- 
tended, and  the  audience  may  have  known  tliat  the  speaker  was  not  worthy 
of  credit.  But  it  would  be  a  terrible  thing  for  the  person  defamed 
*  175  *  if  s^^ch  words  could  therefore  be  printed  and  published  to  all  the 
world,  and  remain  in  a  permanent  form  recorded  against  him,  with- 
out any  remedy  being  permitted  him  for  the  injury  caused  by  their  ex- 
tended circulation.  See  the  remarks  of  Lord  Campbell  in  Davison  v.  Dun- 
can ;  *  and  the  recommendation  of  the  Select  Committee  of  the  House  of 
Commons,  discussed />os<,  pp.  261-263. 

Illustrations. 

"Woor  told  Daniels  that  M'Pherson  was  insolvent ;  Daniels  went  about  telling  Lis 
friends  "  Woor  says  M'Pherson  is  insolvent."  Proof  that  Woor  had  in  fact  said  so  was 
held  no  answer  to  the  action.     Daniels  was  liable  in  damages  unless  he  could  also 

1  See  amte,  c.  VI.,  Publication,  pp.  161-168. 

2  R.  w.  Newman,  1  E.  &  B.  268,  5'58  ;  3  C.  &  K.  252  ;  Dears.  C.  C.  85  ;  22  L.  J. 
Q.  B.    156  ;  17  Jur.  617. 

8  See  De  Crespigny  v.  "Wellesley,  5  Bing.  392  ;  2  M.  &  P.  695  ;  Tidman  v.  Ainslie, 
10  Ex.  66;  M'Pherson  v.  Daniels,  10  B.  &  C.  270  ;  5  M.  &  R.  251  ;  Watkin  v.  Hall, 
L.  R.  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  125  ;  16  W.  R.  857  ;  18  L.  T.  561. 

*  7  E.  &  B.  231  ;  26  L.  J.  Q.  B.  106  ;  3  Jur.  N.  S.  613  ;  5  W.  R.  253 ;  28  L.  T. 
(Old  S. )  265. 

160 


EEPETITION.  *  175 

prove  the  truth  of  Woor's  assertion.     M'Pherson  v.  Daniels,  10  B.  &  C.  263  ;  5  M.  & 
K.  251. 

A  rumor  was  cuiTent  on  the  Stock  Exchange  that  the  chairman  of  the  S.  E.  R.  Co. 
harl  failed  ;  and  the  shares  of  the  company  consequently  fell ;  thereupon  the  defendant 
said,  "  You  have  heard  what  has  caused  the  fall  —  I  mean,  the  rumor  about  the  S. 
Eastern  chairman  having  failed  ? "  Held  that  a  plea  that  there  was  in  fact  such  a 
rumor  was  no  answer  to  the  action.  Watkin  v.  Hall,  L.  R.  3  Q.  B.  396  ;  37  L.  J, 
Q.  B.  125  ;  16  W.  R.  857  ;  18  L.  T.  561  ;  Richards  v.  Richards,  2  Moo.  &  Rob.  557. 

At  a  meeting  of  the  "West  Hartlepool  Improvement  Commissioners,  one  of  the  com- 
missioners made  some  defamatory  remarks  as  to  the  conduct  of  the  former  secretary  of 
the  Bishop  of  Durham  in  procuring  from  the  Bishop  a  licence  for  the  chaplain  of  the 
West  Hartlejjool  cemeter3^  These  remarks  were  reported  in  the  local  newspaper  ;  and 
the  secretary  brought  an  action  against  the  owner  of  the  newspaper  for  libel.  A  plea 
of  justification,  alleging  that  such  remarks  were  in  fact  made  at  a  public  meeting  of  the 
commissioners,  and  that  the  alleged  libel  was  an  impartial  and  accurate  report  of  what 
took  place  at  such  meeting,  was  held  bad  on  demurrer.  Davison  v.  Duncan,  7  E.  & 
B.  229  ;  26  L.  J.  Q.  B.  104  ;  3  Jur.  N.  S.  613 ;  5  W.  R.  253  ;  28  L,  T.  (Old  S.)  265. 

The  defendants,  the  printers  and  publishers  of  the  Manchester  Courier,  published  in 
their  paper  a  report  of  t^ie  proceedings  at  a  meeting  of  the  Board  of  Guardians  for  the 
Altrincham  Poor- Law  Union,  at  which  ex  parte  charges  were  made  against  the  medical 
officer  of  the  Union  Workhouse  at  Knutsford,  of  neglecting  to  attend  the  pauper  patients 
when  sent  for.  Held  that  the  matter  was  one  of  public  interest ;  but  that  the  report 
was  not  privileged  by  the  occasion,  although  it  was  admitted  to  be  a  bona  fide  and  a 
correct  ac-count  of  what  passed  at  the  meeting  ;  and  the  plaintiff  recovered  40s.  damages 
and  costs.  Purcell  v.  Sowler,  1  C.  P.  D.  781  ;  affirmed  on  appeal,  2  C.  P.  D.  215  ; 
46  L.  J.  C.  P.  308  ;  25  W.  R.  362  ;  36  L.  T.  416.  See  also  Pierce  v.  Ellis,  6  Ir.  C. 
L.  R.  64. 

*  So  also  a  newspaper  proprietor  will  be  held  liable  for  publishing  a  report     *  1 76 
made  to  the  vestry  by  their  medical  officer  of  health,  even  although  the  vestry 
are  required  by  Act  of  Parliament  sooner  or  later  to  publish  such  report  themselves. 
Popham  V.  Pickburn,  7  H.  &  N.  891  ;  31  L.  J.  Ex.  133  ;  8  Jur.  N.  S.  179  ;  10  W.  R. 
324  ;  5  L.  T.  846.     See  also  Charlton  v.  Watton,  6  C.  &  P.  385. 

So  even  in  reports  of  judicial  proceedings,  which  are  generally  held  privileo-ed,  if 
the  reporter  merely  sets  out  tlie  facts  as  stated  by  counsel  for  one  party,  and  does  not 
give  the  evidence,  or  merely  says  that  all  that  counsel  stated  was  proved,  a  justifica- 
tion that  counsel  did  in  fact  say  so,  and  that  all  he  stated  was  in  fact  proved,  is  in- 
sufficient ;  tlie  evidence  should  be  set  out,  and  the  charges  made  in  the  counsel's  speech 
should  also  be  justified.  Lewis  v.  Walter,  4  B.  &  Aid.  605  ;  Saunders  v.  Mills,  3  M. 
&  P.  520  ;  6  Bing.  218.  See  also  Flint  v.  Pike,  4  B.  &  C.  473  ;  6  D.  &  R.  528  ;  and 
the  remarks  of  Lord  Campbell  in  Le^ns  v.  Levj-,  E.  B.  &  E.  544  ;  4  Jur.  N.  S.  970  ; 
27  L.  J.  Q.  B.  282. 

It  is  libellous  to  publish  a  highly-colored  account  of  judicial  proceedings,  mixed 
with  the  reporter's  own  observations  and  conclusions  upon  wliat  passed  in  Court,  con- 
taining an  insinuation  that  tlie  plaintiff  had  committed  perjury  :  and  it  is  no  justifica- 
tion to  pick  out  such  parts  of  the  libel  as  contain  an  account  of  tlie  trial,  and  to  plead 
that  such  parts  are  true  and  accurate,  leaving  the  extraneous  matter  altogether  unjusti- 
fied.    Stiles  V.  Nokes,  7  East,  493  ;  sanie  case  sub  nomine  Carr  v.  Jones,  3  Smith,  491. 

At  the  same  time  a  defendant  may  in  mitigation  of  damages 
justify  as  to  one  particular  part  of  the  libel,  provided  such  part 

11  161 


*  176  JUSTIFICATION. 

contains  imputations  distinct  from  the  rest.''  So  he  may  justify- 
as  to  one  part,  and  demur  or  plead  privilege  to  the  rest,  or 
deny  that  he  ever  spoke  or  published  the  rest  of  the  words.  But 
in  all  these  cases  the  part  selected  must  be  severable  from  the 
rest  so  as  to  be  intelligible  by  itself,  and  must  also  convey  a  dis- 
tinct and  separate  imputation  against  the  plaintiff.^ 

*  177        *  Again,  where  the  words  are  laid  with  an  innuendo  in 

the  Statement  of  Claim,  the  defendant  may  justify  the 
words,  either  with  or  without  the  meaning  alleged  in  such  in- 
nuendo ;  or  he  may  do  both.^  That  is,  he  may  deny  that  the 
plaintiff  puts  the  true  construction  on  his  words,  and  assert  that, 
if  taken  in  their  natural  and  ordinary  meaning,  his  words  will  be 
found  to  be  true  ;  or  he  may  boldly  allege  that  the  words  are 
true,  even  in  the  worst  signification  that  can  be  put  upon  them. 
But  it  seems  that  a  defendant  may  not  put  a  meaning  of  his  own 
on  the  words,  and  say  that  in  that  sense  they  are  true  ;  for  if  he 
deny  that  the  meaning  assigned  to  his  words  in  the  Statement  of 
Claim  is  the  correct  one,  he  must  be  content  to  leave  it  to  the 
jury  at  the  trial  to  determine  what  meaning  the  words  naturally 
bear.*  In  Ireland  the  defendant  must  justify  the  innuendo  as 
well  as  the  words.^ 

A  justification  must  always  be  specially  pleaded,  (a)  and  it 

1  Per  Tindal,  C.J.,  in  Clarke  v.  Taylor,  2  Bing.  N.  C.  668  ;  3  Scott,  95  ;  2  Hodges,  65. 

2  McGregor  v.  Gregory,  11  M.  &  W.  287  ;  12  L.  J.  Ex.  204  ;  2  D.  N.  S.  769  ; 
Churchill  v.  Hunt,  2  B.  &  Aid.  685  ;  1  Chit.  480  :  Roberts  v.  Brown,  10  Bing.  519  ; 
4  M.  &  Scott,  407  ;  Biddulph  v.  Chamberlayne,  17  Q.  B.  351. 

3  Watkin  V.  Hall,  L.  R.  3  Q.  B.  396  ;  37  L.  J.  Q.  B.  125  ;  16  W.  R.  857  ;  18  L. 
T.  661. 

*  Bremhridge  v.  Latimer,  12  W.  R.  878  ;  10  L.  T.  816. 
6  Hort  V.  Reade,  Ir.  R.  7  C.  L.  551. 

(a)  The  truth  is  not  admissible  under  a  general  issue  may  have  a  tendency  to  prove 

plea  of  the  general  issue  even  as  mitigation,  the  truth,  if  they  are  not  offered  for  such 

Swift  1).  Dickerman,  31  Conn.  285;  Storey  v.  a  purpose,  but  are  offered  merely  to  rebut 

Early,  86  111.  461  ;  Commonwealth  t).  Mor-  or  cut  down  malice.     Huson  v.  Dale,  19 

gan,  107  Mass.  199  ;  Harper  v.  Harper,  10  Mich.  17  (where  the  conflict  of  authority 

Bush,  447;  Williams^.  Greenwade,  3  Dana,  upon  this  subject  growing  out  of  Under- 

432;  Parkers.  McQueen,  8B.  Mon.  16;  Fow-  wood  v.   Parks,    2  Strange,  1200,  is  criti- 

ler'U.  Gilbert,  38  Mich.  292;  Huson -y.  Dale,  cally  examined)  ;  Swift  v.   Dickerman,  31 

19  Mich.  17  ;  Wier  v.  Allen,  51  N.  H.  177;  Conn.  285  ;  Sweeney  v.  Baker,  13  W,  Va. 

Porter  v.  Botkins,  59  Penn.  St.  484  ;  Lang-  158.     See  Fowler  v.  Gilbert,  38  Mich.  292. 

ton  V.   Hagerty,    35  Wis.    150;  Haws  v.  See  .however  Porter  v.  Botkins,  59  Penn. 

Stanford,  4  Sneed,  520  ;  Sweeney  v.  Baker,  St.  484  ;  Petrie  v.  Rose,  5  Watts  &  S.  364  ; 

13W.  Va.  158.    But  see  Hackett^•.  Brown,  Smith  v.  Smith,   39  Penn.   St.  441.     On 

2  Heisk.  264,  272.     Still  it  matters  not  the  other  hand  it  is  held  that  facts  in  miti- 

that  the  facts  offered  in  evidence  under  the  gation  are  not  admissible  under  a  plea  of 

162 


PLEA. 


177 


must  be  pleaded  with  sufficient  particularity  to  enable  plaintiff 
to  know  precisely  what  is  the  charge  he  will  have  to  meet.^  (a)  A 
plea,  which  professes  to  justify  the  whole  libel,  but  in  effect  jus- 
tifies only  a  part,  is  a  bad  plea,  and  demurrable.  A  plea  of  justi- 
fication is  always  construed  strictly ,2  and  it  must  set  forth  issuable 
fajCts.^ 

"  The  plea  ought  to  state  the  charge  with  the  same  pre- 
cision as  in  an  indictment."  ^  (6)  *  And  at  the  trial  it  must  *  178 
be  proved  as  strictly  as  an  indictment  for  the  offence  it 
imputes.  Indeed,  it  is  said  that  if  words  amount  to  a  charge  of 
felony,  and  the  defendant  justifies  and  the  jury  find  the  plea 
proved,  the  plaintiff  may  at  once  be  put  upon  his  trial  before  a 
petty  jury,  without  the  necessity  of  any  bill  being  found  by  a 
grand  jury.^  (c) 

1  I' Anson  v.  Stuart,  1  T.  R.  748  ;  2  Sm.  Lg.  Cases,  6th  ed.  57  (omitted  in  last 
edition).  ^  Leyman  v.  Latimer,  3  Ex.  D.  15,  352. 

8  Jones  V.  Stevens,  11  Price,  235  ;  Newman  v.  Bailey,  2  Chit.  665  ;  Holmes  v. 
Cateshy,  1  Taunt.  543. 

*  Per  Alderson,  B.,  in  Hickinbotham  v.  Leach,  10  M.  &  W.  363  ;  2  D.  N.  S.  270. 

6  Per  Lord  Kenyon  in  Cook  v.  Field,  3  Esp.  134.  See  the  note  to  Prosser  v.  Rowe, 
2  C.  &  P.  422  ;  Johnson  v.  Browning,  6  Mod.  217. 

V.  Miller,  3  W.  Va.  158.     But  see  the  fol- 
lowing note. 

(c)  Many  of  our  American  courts  fol- 
low this  doctrine  as  to  charges  of  crime, 
though  the  reason  upon  which  it  is  said 
siqjra  to  proceed  is  nowhere  true  in  this 
country.  Mott  v.  Dawson,  46  Iowa,  533  ; 
Georgia  v.  Kepford,  45  Iowa,  48  (confes- 
sion out  of  court  not  enough)  ;  Ellis  v. 
Lindley,  38  Iowa,  461  ;  Forshee  v.  Abrams, 
2  Iowa,  571  ;  Merk  v.  Gelzhaeuser,  50  Cal. 
631  ;  Polston  v.  See,  54  Mo.  291,  one 
judge  dissenting;  Corbley  v.  Wilson,  71 
III.  209  ;  Darling  v.  Banks,  14  111.  46  ; 
Crotty  V.  Morrison,  40  111.  480  ;  Harbison 
V.  Shook,  41  111.  147  ;  Tucker  v.  Call,  45 
Ind.  31  ;  Hutts  v.  Hutts,  62  Ind.  214  ; 
Byrket  v.  Monohon,  7  Bhickf.  83  ;  Lanter 
V.  McEwen,  8  Blackf.  495  ;  Wonderly  v. 
Nokes,  ib.  589  ;  Gants  v.  Vinard,  1  Ind. 
476  ;  Swails  v.  Butcher,  2  Ind.  84  ;  Wil- 
son V.  Barnett,  45  Ind.  163  ;  Clarke.  Dib- 
ble, 16  Wend.  601  ;  Gorman  v.  Sutton,  32 
Penn.  St.  247.  But  perhaps  the  more  gen- 
eral rule  (certainly  the  better  rule)  is  that 
it  is  sufficient  that  a  preponderance  of  evi- 
dence supports  the  i>lea.     Ellis  v.  Buzzell, 

163 


the  truth  alone.  Buckley  v.  Knapp,  48 
Mo.  152  ;  Proctor  •y.  Houghtaling,  37  Mich. 
41  ;  Gregory  v.  Atkins,  42  Vt.  237  ;  Powers 
V.  Cary,  64  Maine,  9  ;  Stone  v.  Varney,  7 
Mat.  86,  93  ;  Chamberlain  r.  Vance,  51  Cal. 
79  ;  Wilson  v.  Fitch,  41  Cal.  384.  Sccus 
in  Indiana.  Heilman  v.  Shanklin,  60  Ind. 
424,  446 ;  Swinney  v.  Nave,  22  Ind.  178  ; 
O'Conner  v.  O'Conner,  27  Ind.  69. 

(a)  See  Fiy  v.  Bennett,  5  Sandf.  54  ; 
Ames  V.  Hazard,  8  R.  I.  143  ;  Sweeney  v. 
Baker,  13  W.  Va.  158  ;  Mull  v.  McKnight, 
67  Ind.  535  ;  De  Armond  v.  Armstrong,  37 
Ind.  35  ;  Sunman  v.  Brewin,  52  Ind.  140. 
Ante,  p.  169,  note.  But  it  is  sufficient  to 
prove  the  justification  substantially  as  al- 
leged. Carpenter  v.  Bailey,  56  N.  H.  283  ; 
s.  c.  53  N.  H.  590.  In  some  cases  the 
facts  on  which  the  charge  is  justified  .as 
true  are  beyond  dispute,  as  where  a  person 
justifies  under  a  city  ordinance.  In  such  a 
case  it  cannot  be  shown  that  the  ordinance 
was  founded  upon  mistaken  facts.  ^  John- 
son V.  Simonton,  43  Cal.  242. 

(b)  That  is  probably  not  true  in  this 
country.  Kent  v.  David,  3  Blackf.  301  ; 
Folsom  V.  Brown,  25  N.  H.  114 ;  Shroyer 


*  178  JUSTIFICATION. 

And  the  Court  will  not  assist  the  defendant  to  obtain  evidence 
in  support  of  his  plea  of  justification,^  For  the  defendant  has  no 
right  to  take  away  the  character  of  the  plaintiff,  unless  he  is  in  a 
position  to  prove  the  truth  of  the  charge  he  has  made. 

Placing  such  a  plea  on  the  record  is  evidence  of  malice  on  the 
part  of  the  defendant,  and  may  be  relied  upon  as  such  by  the 
plaintiff  in  aggravation  of  damages,  if  the  defendant  either  aban- 
dons the  plea  at  the  trial  or  fails  to  prove  it.^ 

In  a  criminal  case  it  is  not  sufficient  to  prove  the  truth  of  the  libel ;  the 
defendant  must  also  prove  tliat  it  was  for  the  public  benefit  that  the  mat- 
ters charged  should  be  published.*  And  indeed  before  1843  the  truth  of 
the  libel  was  no  defence  at  all  to  an  indictment ;  the  maxim  prevailed, 
"  the  greater  the  truth,  the  greater  the  libel."  Yet  it  was  always  otherwise 
with  a  civil  action  ;  there  the  truth  was  always  a  complete  bar  to  the  action. 
The  benefit  or  detriment  to  the  public,  it  was  said,  is  in  no  way  in 

*  179    issue  in  a  civil  trial ;  *  the  plaintiff  is  seeking  to  recover  damages 

to  put  in  his  own  pocket  —  damages  for  injury  done  to  a  character 
to  which  he  had  no  right  or  title.  And  no  doubt  in  the  vast  majority  of 
cases  there  is  great  force  in  this  argument.  It  is  right  that  culprits  should 
appear  in  their  true  colors,  lest  honest  men  be  beguiled,  "perxata  enim  no- 
ccntium  nota  esse  et  oportere  et  eocpedire"  *  And  some  men  may  be  de- 
terred from  committing  an  act  of  dishonesty  or  immorality  by  the  knowledge 

1  Metropolitan  Saloon  Omnibus  Co.  v.  Hawkins,  4  H.  &  N.  87,  146;  28  L.  J. 
Ex.  201;  7  W.  R.  265;  32  L.  T.  (Old  S.)  281  ;  5  Jur.  N.  S.  226. 

2  Warwick  v.  Foulkes,  12  M.  &  W.  508  ;  Wilson  v.  Robinson,  7  Q.  B.  68  ;  14  L.  J. 
Q.  B.  196  ;  9  Jur.  726  ;  Simpson  v.  Robinson,  12  Q.  B.  511 ;  18  L.  J.  Q.  B.  73  ;  13 
Jur.  187.  3  6  &  7  yict.  c.  96,  s.  6,  post,  p.  389.  *  Paulus. 

60  Maine,  209  ;  Sloan  v.  Gilbert,  12  Bush,  the  elements  of  the  crime  charged  in  act 
51  ;  McBee  v.  Fulton,  47  Md.  403  ;  Kin-  and  in  intent  ;  and  he  must  overcome  the 
cade  V.  Bnidshawe,  3  Hawks,  63  ;  Barfield  presumption  of  innocence  and  the  opposing 
V.  Britt,  2  Jones,  41  ;  Mathews  v.  Huntley,  evidence.  But  it  is  said  in  the  same  case 
9  N.  H.  150  ;  Folsom  v.  Brown,  25  N.  H.  that  the  decisions  which  require  more  than 
114,  122  ;  Spruill  v.  Cooper,  16  Ala.  791  ;  this  are  mostly  cases  of  charges  of  perjuiy, 
Downing  v.  Brown,  3  Col.  571  ;  Hawver  and  refer  to  the  mode  rather  than  to  the 
V.  Hawver,  78  111.  412.  amount  of  evidence  required  ;  in  regard  to 
The  strict  rule  of  the  criminal  law  ap-  which  last  point  the  rule  in  some  States 
plies  at  all  events  only  to  charges  of  crime,  concerning  the  need  of  two  witnesses  or 
Wilson  V.  Barnett,  45  Ind.  163.  And  evi-  one  witness  with  corroborating  evidence 
dence  short  of  that  required  upon  an  in-  upon  a  plea  of  the  truth  of  a  charge  of 
dictment  would  perhaps  be  admissible  in  perjury  may  be  referred  to.  Downing  v. 
an  action  for  slander  by  way  of  mitigation.  Brown,  3  Col.  571  ;  Spruill  v.  Cooper,  16 
Tucker  V.  Call,  45  Ind.  31.  On  the  other  Ala.  791  ;  Ransone  v.  Christian,  56  Ga, 
hand  an  important  distinction  is  noticed  351  ;  s.  c.  49  Ga.  491  ;  Steinman  v.  Ma- 
in McBee  v.  Fulton,  47  Md.  403,  to  wit,  Williams,  6  Barr,  170  ;  Hopkins  v.  Smith, 
that  even  under  the  rule  of  preponderating  3  Barb.  599  ;  Craudall  v.  Dawson,  1  Gilm. 
evidence  the  defendant  must  still  prove  all  556. 

164 


WHY  A   DEFENCE.  *  179 

tliat,  if  discovered,  it  may  alwaj'-s  be  brouglit  up  against  them,  wherever 
they  go,  to  the  end  of  their  lives.  But  in  other  cases  where  a  man  has 
retrieved  his  character  by  long  years  of  good  behavior,  it  is  clearly  morally 
wrong  for  one  who  knows  of  his  early  delinquencies  to  come  and  blast  the 
reputation  which  he  has  fairly  earned.  Should  nut  an  action  lie,  where  the 
plaintiff's  antecedents  have  been  maliciously  raked  up  and  wantonly  pub- 
lished to  the  world,  without  any  benefit  to  society  %  Prisoners  constantly 
complain  that  it  is  impossible  for  them  to  earn  a  livelihood  by  honest 
labor  on  coming  out  of  prison,  because  as  soon  as  they  obtain  employment 
anywhere,  the  police  inform  their  master  of  the  fact  of  their  previous  con- 
viction, and  they  are  at  once  discharged.  And  in  a  recent  case,^  counsel 
intimated  that  it  was  the  rule  in  the  West  of  England  for  policemen  so  to 
do.  But  Mr.  Justice  Hawkins  at  once  "  expressed  his  opinion  that  it  was 
not  the  duty  of  the  police  to  do  so.  The  police,  he  considered,  ought  to 
be  the  friends  of  released  criminals  and  help  them  to  return  to  an  honest 
life.  That  they  should  go  and  inform  those  who  had  given  a  convict  em- 
ployment of  the  fact  of  his  having  been  convicted  was  simply  to  drive  the 
convict  into  crime  again.  He  was  aware  that  this  was  done  in  many 
parts  of  the  country,  but  he  for  his  part  thought  that  it  should  not  be.  It  was 
an  unnecessary,  an  officious,  and  a  cruel  act ;  and  the  result  of  it  was  that 
once  a  man  was  convicted  he  was  branded  for  the  rest  of  his  life,  and  a 
return  to  honesty  was  made  most  difficult  for  him."^  No  doubt  it  is  part 
of  the  punishment  of  a  criminal  that  he  can  never  escape  from  his  mis- 
deeds ;  but,  nevertheless,  to  unduly  proclaim  them  is  malicious  and  un- 
charitable. Eailway  companies  used  formerly  to  placard  the  names  and 
addresses  of  offenders  against  their  bye-laws ;  but  lately  they  have 
adopted  a  more  merciful  but  equally  *deterrent  form  of  announce-  *  180 
ment :  —  "A  passenger  was  convicted,"  &c.  On  the  whole,  how- 
ever, I  do  not  advocate  any  change  in  the  law  in  this  respect.  No  law  can 
be  framed  which  cannot  be  made  to  press  harshly  on  individuals  under  ex- 
ceptional circumstances  and  in  the  hands  of  uncharitable  persons.  And  as 
a  rule  the  strictness  with  which  a  defendant  is  made  to  prove  his  plea  of 
justification,  is  a  sufficient  protection  to  a  plaintiff :  for  if  a  man  is  really 
malicious  in  making  a  statement,  he  is  almost  sure  to  go  beyond  the  trutli, 
and  say  too  much. 

In  Rome  the  truth  of  the  libel  was  undoubtedly  a  defence  both  to  crim- 
inal and  to  civil  proceedings.  "  Eum  qui  nocentem  infamavit  non  esse 
bonum  aequum  ob  cam  rem  condemnari."^     So  in  Horace  :*  — 

"  bona  [fiai-mina]  si  quis 
Judice  condiderit  laudatur  Cajsare  :  si  quis 
Opprobriis  diguum  laceraverit,  integer  ipse." 

^  R.  V.  Seymore,  Winchester  Spring  Assizes,  1880. 

2  Times,  for  April  23d,  1880.  8  Pauli  Sent.  V.  4.  *  Sat.  II.  1.  83,  5. 

165 


*  180  JTJSTinCATIOX. 

The  rescript  of  Diocletian  and  Maximian  to  Victorinus  is  sometimes  cited 
as  an  authority  against  this  view ;  but  it  appears  to  me  to  have  nothing  to 
do  with  the  subject.  It  seems  that  Victorinus  had  in  the  course  of  his 
official  duty  charged  a  man  with  homicide,  and  he  writes  to  know  if  he  had 
thereby  made  himself  liable  to  an  action  when  his  term  of  office  had  expired. 
The  emperor's  reply  is  as  follows  :  —  "  Impp.  Diocletianus  et  Maximianus 
A.A.  Victorino.  Si  non  convicii  consilio  te  aliqiiid  injiiriosum  dixisse 
probare  potes,  fides  veri  a  calumnia  te  defendit.  Si  autem  in  rixam  incon- 
sulto  calore  prolapsus  homicidii  convicium  objecisti,  et  ex  eo  die  annus 
excessit,  cum  injuriarum  actio  annuo  tempore  prescripta  sit  ob  injurise  ad- 
missum  conveniri  non  potes."  ^  Here  the  woxils  fides  veri  have  generally 
been  understood  by  the  commentators  to  mean  "  proof  of  the  truth  of  the 
charge ;  "  and  hence  they  have  inferred  that  the  truth  was  not  of  itself  a  de- 
fence ;  the  defendant  had  to  prove  something  more,  viz.,  that  the  imputation 
was  made  sine  animo  conviciandi.  "The  ingenious  author  of  the  note  to  Star- 
kie's  Commentar}^,  p.  20,  however,  translates  the  passage  thus :  —  If  you  really 
spoke  the  words  non  convicii  consilio,  then  proof  of  the  truth  of  this 

*  181    will  *  exculpate  you  ;  this  being  the  fact  that  you  spoke  non  convicii 

consilio,  so  tliat  the  passage  would  mean  merely :  —  "  proof  that  you 
spoke  without  malicious  intent  is  a  bar  to  the  action."  ^  But  it  is  very 
harsh  to  make  probare  potes  and  fides  veri  refer  to  the  same  piece  of  proof. 
I  venture  to  think  that  Victorinus  had  heard  on  good  authority  that  the 
man  had  been  guilty  of  homicide,  and,  believing  the  charge  to  be  true,  ob- 
jected to  his  promotion  to  some  higher  office ;  and  I  would  translate  the 
passage  :  —  "If  you  spoke  without  any  malicious  intent,  your  own  honest 
belief  in  the  trutli  of  the  charge  will  be  a  good  defence ;  but  if  in  a  sudden 
quarrel,  and  in  the  heat  of  the  moment  you  called  him  homicide  without  any 
ground  for  the  accusation  (inconsulto  calore),  why,  then,  you  must  rely 
on  the  Statute  of  Limitations."  If  I  am  right,  then,  this  rescrij^t  does  not 
refer  to  Justification,  but  rather  comes  under  the  defence  of  Privilege, 
which  will  be  dealt  with  in  the  next  chapter. 

1  P.  P.  vi.  Id.   Jul.  ipsis  iv.  et  iii.  A.  A.  conss.  (A.  D.  290).     Krueger's  Codex 
(ed.  1877),  p.  855. 
*  &Q&  post,  p.  184. 

166 


*  CHAPTER  VIII.  *182 

PRIVILEGED   OCCASIONS. 

It  is  a  defence  to  an  action  of  libel  or  slander  to  prove  that 
the  circumstances  under  which  the  defamatory  words  were  writ- 
ten or  spoken  afforded  an  excuse  for  their  emplo^'ment.  (a) 
And  this  is  so,  even  though  the  words  be  proved  or  be  admitted 
to  be  false.  Circumstances  will  afford  an  excuse  for  writing 
or  speaking  defamatory'  words,  whenever  the  occasion  is  such 
as  to  cast  upon  the  defendant  a  duty,  whether  legal  or  moral, 
of  stating  what  he  honestly  believes  to  be  the  plaintiff's  character, 
and  of  speaking  his  mind  fully  and  freely  concerning  him.  In 
such  a  case  the  occasion  is  said  to  be  privileged,  and  the  employ- 
ment of  defamatory  words  on  such  privileged  occasion  is,  in  the 
interest  of  the  public,  excused.  Again,  the  circumstances  will 
afford  an  excuse  for  writing  or  speaking  defamatory  words,  when- 
ever such  words  form  part  of  a  confidential  communication, 
made  by  the  defendant  to  his  partner  or  friend  on  a  matter  in 
which  they  have  a  common  interest  and  concern ;  provided  such 
communication  is  made  honestly  in  furtherance  of  such  common 
interest,  not  recklessly  or  maliciously.  Here  too  the  occasion  is 
said  to  be  "  privileged,"  and  though  the  statement  ma}'  prove,  or 
be  admitted,  to  be  false,  still  its  utterance  on  such  privileged  occa- 
sion is  excused  for  the  sake  of  common  convenience,  and  for  the 
welfare  of  society. 

*  Illitstrations.  *  183 

I  am  called  as  a  witness,  and  sworn  to  speak  the  truth,  the  whole  truth,  and  noth- 
ing but  the  truth.  I  may  do  so  without  fear  of  any  legal  liability,  even  though  I  am 
thus  compelled  to  defame  my  neighbor. 

I  am  asked  for  a  character  of  my  late  servant  by  one  to  whom  he  has  applied  for  a 

(a)  Privilege  should  of  course  be  plead-  if  the  privilege  be  qualified,  requires  the 

ed.     Quinn  v.  Scott,  22  Minn.  456  ;  Gor-  plaintiff  to  sliow  ex]iress  malict>.     Shurt- 

ton  V.  Keeler,   51  Barb.  475  ;  Wachter  v.  leff  v.   Stevens,  51  Vt.  501  ;  O'Donaghue 

Quenzer,  29  N.  Y.  547,  553.     This  then,  v.  McGovern,  23  Wend.  26. 

167 


*  183  PRIVILEGED   OCCASIONS. 

situation.     I  may  state  in  reply  all  I  know  against  him  without  being  liable  to  an  ac- 
tion; provided  I  do  so  honestly  and  truthfully  to  the  best  of  my  ability. 

A  friend  recently  come  to  live  in  the  town  privately  asks  my  opinion  as  to  such  and 
such  a  lawyer,  doctor,  tradesman,  workman,  &c.  I  may  tell  him  in  answer  all  I  know 
concerning  each  of  them;  both  as  to  their  skill  and  ability  in  their  business  and  also 
as  to  their  private  character,  their  integrity,  or  immorality. 

Privileged  occasions  are  of  two  kinds :  — 

(i.)  Those  absolutely  privileged,  (a) 

(ii.)  Those  in  which  the  privilege  is  but  qualified. 

In  the  first  class  of  cases  it  is  so  much  to  the  public  interest 
that  the  defendant  should  speak  out  his  mind  fully  and  freely, 
that  all  actions  in  respect  of  words  spoken  thereon  are  absolutely 
forbidden,  even  though  it  be  alleged  that  the  words  were  spoken 
falsely,  knowingly,  and  with  express  malice.  But  this  complete 
immunity  is  confined  to  cases  where  the  public  service,  or  the 
due  administration  of  justice,  requires  it,  e.g.,  words  spoken  in 
Parliament;  reports  of  military  officers  on  military  matters  to 
their  military  superiors  ;  everything  said  by  a  judge  on  the  bench, 
by  a  witness  in  the  box,  &c.,  &c.  In  all  these  cases  the  privilege 
afforded  by  the  occasion  is  an  absolute  bar  to  any  action. 

In  less  important  matters,  however,  where  the  interests  of  the 
pubhc  do  not  demand  that  the  speaker  should  be  freed  from  all 
responsibility,  but  merely  require  that  he  should  be  protected  so 
far  as  he  is  speaking  honestly  for  the  common  good,  in  these  the 

privilege  is  said  not  to  be  absolute  but  qualified  only ;  and 
*  184    tlie  *  plaintiff  will  recover  damages  in  spite  of  the  privilege, 

if  he  can  prove  that  the  words  were  not  used  bond  fide  but 
that  the  defendant  availed  himself  of  the  privileged  occasion  wil- 
fully and  knowingly  to  defame  the  plaintiff. 

(rt)  It    has    sometimes    been   doubted  Johns.   13;   "White  v.  Carroll,  42  N.  Y. 

whether  there  exists  in  the  law  of   this  161 ;  Marsh  v.  Ellsworth,  50  N.  Y.  309  ; 

country  any  absolute  privilege  protecting  Gilbert  v.   People,  1  Denio,  41  ;  Allen  v. 

the   publication  of  defamatory  language.  Crofoot,  2  "Wend.  515  ;  Garden  v.  Sedden, 

"White  V.  Nicholls,  3  How.  266.     Language  4  Comst.  91 ;  Ruohs  v.  Backer,    6  Heisk. 

in  Lawson  v.  Hicks,  38  Ala.  279,  in  regard  395;  Lea  v.  White,  4  Sneed,  111  ;  Calkins 

to  communications  of  counsel  and  parties  v.  Sumner,  13  Wis.  193;  Morgan  v.  Booth, 

in  legal  causes  "without  proof  of  actual  13  Bush,  480;  Spaids  v.  Barrett,  57  111. 

malice"  may   also  be  noticed.     See  also  289;  Strauss  v.  Meyer,  48  111.  385;  Rice 

Lester  v.  Thumond,  51  Ga.  118  ;  post,  p.  v.  Coolidge,  121  Mass.  393  ;  McLaughlin 

190,  note.     But  the  doubt  has  been  disre-  v.  Cowley,  127  Mass.  316  ;  Hoar  v.  Wood, 

garded.     Hastings  v.  Lnsk,  22  Wend.  410 ;  3  Met.  193  ;  Johnson  v.  Brown,  13  W.  Va. 

s.  c.  Bigelow's  L.  C.  Torts,  121;  Shelfer  71. 
V.  Gooding,  2  Jones,  175  ;  Lewis  v.  Few,  5 
168 


DUTY  OF  THE  JUDGE.  *  184 


Illustrations. 

If  a  witness  in  the  box  volunteers  a  defamatory  remark,  qiiite  iiTelevant  to  the  cause 
in  which  lie  is  sworn,  with  a  view  of  gratifying  his  own  vanity,  and  of  injui'ing  the 
professional  reputation  of  the  plaintiff,  still  no  action  lies  against  such  witness  ;  the 
words  are  still  absolutely  privileged  ;  for  they  were  spoken  in  the  box.  Seaman  v. 
Netherclift,  1  C.  P.  D.  540  ;  45  L.  J.  C.  P.  D.  798  ;  24  W.  E.  8S4  ;  34  L.  T.  878  ;  2  C. 
P.  D.  53  ;  46  L.  J.  C.  P.  128  ;  25  W.  R.  159  ;  35  L.  T.  784. 

But  if  I  maliciously  give  a  good  servant  a  bad  character  in  order  to  prevent  her 
"bettering  herself,"  and  so  to  compel  her  to  return  to  my  own  service,  the  case  is 
thereby  taken  out  of  the  privilege,  and  the  servant  may  recover  heavy  damages. 

In  Eoman  law  an  intention  to  injure  the  plaintiff  was  essential  to  the 
action  for  injuria}  Hence  they  never  presumed  malice  ;  the  plaintiff  had 
to  prove  that  the  defendant  expressly  intended  to  impair  his  good  name. 
Thus  if  an  astrologer  or  soothsayer  in  the  bond  fide  practice  of  his  art,  de- 
nounces A.  as  a  thief  when  he  is  an  honest  man,  A.  has  no  action ;  for  the 
astrologer  only  committed  an  honest  mistake.  But  it  would  be  otherwise 
if  the  soothsayer  did  not  really  believe  in  his  art,  but  pretended,  after  some 
jugglery,  to  arrive  at  A.'s  name  from  motives  of  private  enmity.^  That 
being  so,  it  was  unnecessary  for  the  Romans  to  have  any  law  as  to  qualified 
privilege ;  unless  there  was  some  evidence  of  malice  the  plaintiff  was  in 
every  case  non-suited.  But  neither  did  they  allow  any  absolute  privilege ; 
on  express  malice  proved  the  plaintiff  recovered.  Even  the  fact  that  the 
libel  was  contained  in  a  petition  sent  to  the  Emperor  was  no  protection.^ 
Two  adversaries  in  litigation  were  of  course  allowed  great  latitude ;  a  cer- 
tain amount  of  mutual  defamation  being  essential  to  the  conduct  of  the 
case  and  so  not  malicious  :  but  even  here  moderation  had  to  be  observed.'* 
The  Roman  plan  had  at  least  the  merit  of  simplicity, 

*  Whether  the  communication  is,  or  is  not,  privileged  *  185 
by  reason  of  the  occasion,  is  a  question  for  the  judge  alone, 
where  there  is  no  dispute  as  to  the  circumstances  under  which  it 
was  made.^  If  there  be  any  doubt  as  to  these  circumstances,  the 
jury  must  find  what  the  circumstances  in  fact  were,  or  what  the 
defendant  honestly  believed  them  to  be,  if  that  be  the  point  to 
be  determined ;  and  then,  on  their  findings,  the  judge  decides 
whether  the  occasion  was  privileged  or  not.  (a)     If  the  occasion 

1  D.  47.  10.  3.  3  &  4.  2D.  47.  10.  15.  13. 

8  D.  47.  10.  15.  29.  <  Pauli  Sent.  V.  iv.  15. 

6  Stace  V.  Griffith,  L.  R.  2  P.  C.  420;  6  Moore,  P.  C.  C.  N.  S.  18  ;  20  L.  T.  197. 

(a)  Hamilton  v.  Eno,  81  N.  Y.   116  ;  Palmer  v.  Concord,  48  N.  H.  217.     Car- 

Klinck  V.  Colby,  46  N.  Y.  427  ;  Garrett  penter  v.   Bailey  is  not  of  course  to  be 

V.  Dickerson,  19  Md.  418  ;    Carpenter  v.  taken  as  meaning  anything  different.     See 

Bailey,  56  N.  H.  283;  s.  c.  53  N.  H.  590  ;  post,  p.  215. 

169 


*  185  ABSOLUTE  PRIVILEGE, 

was  not  privileged,  and  the  words  are  defamatory  and  false,  the 
judge  will  direct  a  verdict  for  the  plaintiff.  If  the  occasion  was 
absolutely  privileged,  judgment  will  at  once  be  given  for  the  de- 
fendant. If,  however,  the  judge  decides  that  the  occasion  was 
one  of  qualified  privilege  only,  the  plaintiff  must  then,  if  he  can, 
give  evidence  of  actual  malice  on  the  part  of  the  defendant.  If 
he  gives  no  such  evidence,  it  is  the  duty  of  the  judge  to  nonsuit 
him,  or  to  direct  a  verdict  for  the  defendant.  If  he  does  give  any 
evidence  of  malice  sufficient  to  go  to  the  jury,  then  it  is  a  ques- 
tion for  the  jury  whether  or  no  the  defendant  was  actuated  by 
malicious  motives.^ 


PAET  I. 

I.   OCCASIONS   ABSOLUTELY  PRIVILEGED. 

As  a  rule,  when  words  are  published  on  a  privileged  occasion, 
the  privilege  given  them  by  the  occasion  is  only  qualified,  that  is 
the  plaintiff  can  still  be  heard  to  say  that  the  defendant  did  not 

act  under  the  privilege,  that  he  did  not  intend  honestly  to 
*  186    discharge  a  dut}',  but  *  maliciously  availed  himself  of  the 

privileged  occasion  to  injure  the  plaintiff's  reputation.  But 
in  certain  cases  the  privilege  is  absolute,  and  no  action  lies  for 
words  uttered  on  such  an  occasion.  There  are  not  many  such  cases, 
nor  is  it  desirable  that  there  should  be  many.  The  Courts  refuse 
to  extend  their  number.^  In  all  of  them  the  immunity  is  af- 
forded on  the  ground  that  it  is  "  advantageous  for  the  public 
interests  that  such  persons  should  not  in  any  way  be  fettered  in 
their  statements." 

(i.)  Parliamentary  Proceedings. 

No  member  of  either  House  of  Parliament  is  in  any  way  re- 
sponsible in  a  court  of  justice  for  anything  said  in  the  House.^  (a) 

1  ^ee  post,  c.  IX.  Malice. 

2  Stevens  v.  Sampson,  5  Exch.  D.  53  ;  49  L.  J.  Q.  B.  120  ;  28  W.  R.  87;  41  L.  T. 
782.  8  Bill  of  Rights,  1  Wm,  &  Mary,  st.  2,  c.  2. 

(a)  CoflBn  v.  Coffin,  4  Mass.  1  ;  Hast-     But  the  words  should  be  spoken  oflBcially. 
ings  V.  Lusk,  22  Wend.  410,  417;  Com-     Coffin  i).  Coffin,  4  Mass.  31. 
monwealth  v.  Blanding,  3  Pick.  304,  314. 

170 


PEOCEEDINGS   IN  PARLIAMENT.  *  186 

And  no  indictment  will  lie  for  an  alleged  conspiracy  by  members 
of  either  House  to  make  speeches  defamatory  of  the  plaintiff.^ 
But  this  privilege  does  not  extend  outside  the  walls  of  the  House. 
Therefore,  if  a  member  publishes  to  the  world  the  speecli  he  de- 
livered in  his  place  in  the  House,  he  will  be  liable  to  an  action  as 
any  private  individual  would  be.-  Though  no  doubt  if  a  member 
of  the  House  of  Commons  merel}^  printed  his  speech  for  private 
circulation  among  his  constituents  there  might  be  a  conditional 
privilege  attaching  to  it,  in  the  absence  of  any  malicious  intent 
to  injure  the  plaintiff.^ 

*  But  at  common  law,  even  if  the  whole  House  ordered  *  187 
the  pubhcation  of  parliamentary  reports  and  papers,  no 
privilege  attached.*  But  now,  by  Stat.  3  &  4  Vict.  c.  9,  all  re- 
ports, papers,  votes,  and  proceedings,  ordered  to  be  published  by 
either  House  of  Parliament,  are  made  absolutely  privileged,  and 
all  proceedings  at  law,  civil  or  criminal,  will  be  stayed  at  once  on 
the  production  of  a  certificate  that  they  were  published  by  order 
of  either  House. ^  The  only  case  under  the  Act  is  the  second 
case  of  Stockdale  v.  Hansard.^ 

Reports  in  the  newspapers  of  Parliamentary  proceedings  are 
conditionally,  not  absolutely  privileged.' 

A  petition  to  Parliament  is  absolutely  privileged,  although  it 
contain  false  and  defamatory  statements.^  So  is  a  petition  to  a 
committee  of  either  House.^  But  a  publication  of  such  a  petition 
to  others  not  members  of  the  House  is  of  course  not  privileged. 

(ii.)  Judicial  Proceedings. 

No  action  will  lie  for  defamatory  statements  made  or  sworn  in 
the  course  of  a  judicial  proceeding  before  any  Court  of  competent 

1  Ex  parte  Wason,  L.  R.  4  Q.  B.  573  ;  38  L.  J.  Q.  B.  302 ;  40  L.  J.  (M.  C.)  168  ; 
17  W.  R.  881. 

2  R.  V.  Lord  Abingdon,  1  Esp.  226  ;  R.  v.  Creevey,  1  M.  &  S.  273. 

8  Per  Lord  Campbell  in  Davison  v.  Duncan,  7  E.  &  B.  233  ;  26  L.  J.  Q.  B.  107, 
and  Cockburn,  C.J.,  in  Wason  v.  Walter,  L.  R.  4  Q.  B.  95  ;  8  B.  &  S.  730  ;  38  L.  J. 
Q.  B.  42  ;  17  W.  R.  169  ;  19  L.  T.  416. 

*  R.  V.  Williams  (1686),  2  Shower,  471  ;  Comb.  18  (see,  howeyer,  the  comments  on 
this  case  in  R.  v.  Wright  (1799),  8  T.  R.  293);  Stockdale  v.  Hansard  (1839),  2  Moo. 
&  Rob.  9  ;  7  C.  &  P.  731 ;  9  A.  &  E.  1-243  ;  2  P.  &  D.  1  ;  3  Jur.  905  ;  8  Dowl. 
148,  522.  6  See  the  Act  in  Appendix. 

6  (1840),  11  A.  &  E.  253,  297.  ^  See  joo5/,  p.  257. 

8  Lake  v.  King,  1  Saund.  131  ;  1  Lev.  240  ;  1  Mod.  58  ;  Sid.  414. 

9  See  Kane  v.  Mulvany,  Ir.  R.  2  C.  L.  402. 

171 


*  187  ABSOLUTE   PRIVILEGE. 

jurisdiction,  (a)     Eveiytliing  that  a  judge  says  on  the  bench,  or 

a  witness  in  the  box,  or  counsel  in  arguing,  is  absolutely  privileged, 

so  long  as  it  is  in  anyway  connected  with  the  enquiry.    So 

*  188    are  all  *  documents  necessarj^  to  the  conduct  of  the  cause, 

such  as  pleadings,  affidavits,  and  instructions  to  counsel. 
This  immunity  rests  on  obvious  grounds  of  public  policy  and 
convenience. 

A  judge  of  a  superior  Court  has  an  absolute  immunity,  and  no 
action  can  be  maintained  against  him,  even  though  it  be  alleged 
that  he  spoke  maliciously,  knowing  his  words  to  be  false,  and 
also  that  his  words  were  irrelevant  to  the  matter  in  issue  before 
him,  and  wholly  unwarranted  by  the  evidence.  It  is  essential 
to  the  highest  interests  of  public  policy  to  secure  the  free  and 
fearless  discharge  of  high  judicial  functions.'  (J) 

The  judge  of  an  inferior  Court  of  record  enjoys  the  same  im- 
munity in  this  respect  as  the  judge  of  a  superior  Court,  so  long 
as  he  has  jurisdiction  over  the  matter  before  him.  For  any  act 
done  in  any  proceeding  in  which  he  either  knows,  or  ought  to 
knovr,  that  he  is  without  jurisdiction,  he  is  liable  as  an  ordinary 
subject.^  And  so  he  would  be  for  words  spoken  after  the  cause 
is  at  an  end.^  A  justice  of  the  peace,  however,  does  not  enjoy 
quite  so  wide  an  immunity.  An  action  will  lie  against  him  for 
defamatory  words  irrelevant  to  the  matter  in  issue  before  him  if 
they  be  spoken  maliciously  and  without  reasonable  or  probable 
cause.*  But  if  the  conduct  of  the  plaintiff  be  a  matter  relevant 
to  the  enquiry,  and  the  proceedings  are  within  the  jurisdiction  of 

1  Floyd  V.  Barker,  12  Rep.  24. 

2  Houlden  v.  Smith,  14  Q.  B.  841  ;  Calderi;.  Halket,  3  Moo.  P.  C.  C.  28. 

3  Paris  V.  Levy,  9  C.  B.  N.  S.  342  ;  30  L.  J.  C.  P.  11  ;  7  Jur.  N.  S.  289  j  9  W.E. 
562 ;  3  L.  T.  324  ;  6  L.  T.  394. 

4  See  Kirby  v.  Simpson,  10  Exch.  358  ;  Gelen  v.  Hall,  2  H.  &  N.  379. 

(a)  In  Ruohs  r.  Backer,  6  Heisk.  395,  Brown,  5!y;r«;  Milam  tj.  Bumsides,  1  Brev. 

a  distinction  is  taken  between  statements  295.     Still  though  it  had  not,  or  though 

affecting  parties  to  the  record  and  state-  the  statements  were  not  relevant,  there  is 

ments  affecting  strangers  ;  and  it  is  held  deemed  to  exist  a  qualified  privilege  re- 

that  in  cases  of  the  latter  kind  the  privi-  quiring  the  plaintiff  to  prove  express  mal- 

lege  is  conditional  and  not  absolute.     See  ice.  lb.     Pertinency  is  a  question  of  law. 

also   Saunders   v.   Baxter,  6   Heisk.   369.  lb.     A  proceeding  to  try  the  sanity  of  a 

But  that  distinction  is  repudiated  in  John-  person  is  judicial.      Hutts  v.   Hutts,   62 

son  V.  Brown,  13  W.  Va.  71,  and  it  is  not  Ind.  214. 

elsewhere  taken.     It  seems  however  that  (b)  McLaughlin  v.  Cowley,  127  Mass, 

to  make  the  privilege  absolute  the  court  316  ;    Rice  v.   Coolidge,    121   Mass.  393  ; 

must  have  had  jurisdiction.     Johnson  v.  Hoar  v.  Wood,  3  Met.  193. 

172 


JUDICIAL  PROCEEDINGS.  *  188 

the  magistrate,  he  may  express  his  opinion  of  such  conduct  with 
the  utmost  freedom  and  no  action  will  lie.^ 


*  Illustrations.  *  189 

No  action  will  lie  against  a  judge  of  one  of  the  superior  Courts  for  any  judicial  act, 
though  it  be  alleged  to  have  been  done  maliciously  and  corruptly.  Fray  v.  Blackburn, 
3  B.  &  S.  576.  See  Floyd  v.  Barker,  12  Rep.  24  ;  Groenvelt  v.  Burwell,  1  Ld.  Eaym. 
454,  468  ;  12  Mod.  388  ;  Dicas  v.  Lord  Brougham,  6  C.  &  P.  249  ;  1  M.  &  R.  309  ; 
Taaffe  v.  Downes,  3  Moo.  P.  C.  C.  36,  n.;  Kemp  v.  Neville,  10  C.  B,  N.  S.  523  ;  31 
L.  J.  C.  P.  158  ;  4  L.  T.  640. 

No  action  lies  against  a  judge  for  unjustly  censuring  and  denouncing  a  counsel  then 
engaged  in  the  cause  before  him,  even  although  it  be  alleged  that  it  was  done  from 
motives  of  private  malice.     JMiller  v.  Hope,  2  Shaw,  Sc.  App.  Gas.  125. 

A  County  Court  judge,  while  sitting  in  Court  and  trying  an  action  in  which  the 
plaintiff  was  defendant,  said  to  him  :  —  "  You  are  a  harpy,  preying  on  the  vitals  of  the 
poor."  The  plaintiff  was  an  accountant  and  scrivener.  Held,  that  no  action  lay  for 
words  so  spoken  by  the  defendant  in  his  capacity  as  County  Court  judge,  although 
they  were  alleged  to  have  been  spoken  falsely  and  maliciously  and  without  any  reasonable 
or  probable  cause  or  any  foundation  whatever,  and  to  have  been  wholly  irrelevant  to 
the  case  before  him.  Scott  v.  Stansfield,  L.  R.  3  Ex.  220  ;  37  L.  J.  Ex.  155  ;  16  W. 
R.  911  ;  18  L.  T.  572. 

No  action  lies  against  a  coroner  for  anything  he  says  in  his  address  to  the  jury  im- 
panelled before  him,  however  defamatory,  false,  or  malicious  it  may  be  ;  unless  tlie 
plaintiff  can  prove  that  the  statement  was  wholly  irrelevant  to  the  inquisition  and  not 
warranted  by  the  occasion,  the  Coroner's  Court  being  "  a  Court  of  Record  of  very  high 
authority."  Thomas  v.  Churton,  2  B.  &  S.  475  ;  31  L.  J.  Q.  B.  139  ;  8  Jur.  N.  S.  795. 
See  also  Yates  v.  Lansing,  5  Johns.  283  ;  9  Johns.  395  (American). 

A  chairman  of  Quarter  Sessions  may  denounce  the  grand  jury  as  "a  seditious, 
scandalous,  corrupt,  and  perjured  jury."     R.  v.  Skinner,  Lofft,  55. 

The  judgment  of  a  court-martial  containing  defamatory  matter  is  absolutely  privileged, 
though  it  is  not  a  court  of  record.  Jekyll  v.  Sir  John  Moore,  2  B.  &  P.  N.  R.  341  ; 
6  Esp.  63  ;  Home  v.  Bentinck,  2  B.  &  B.  130  ;  4  Moore,  563  ;  Oliver  v.  Bentinck,  3 
Taunt.  456. 

A  magistrate  commented  severely  on  the  conduct  of  a  policeman  which  came  under 
his  judicial  notice,  and  in  consequence  the  policeman  was  dismissed  from 
the  force.  Held,  that  no  action  lay,  unless  there  was  clear  *  proof  both  of  *  190 
express  malice  and  of  the  absence  of  all  reasonable  and  probable  cause.  Per 
Lord  Denman,  C.J.,  in  Kendillon  v.  Maltby,  2  M.  &  Rob.  438  ;  Car.  &  Mar.  402  ; 
1  Dow.  &  Clark,  495.  See  also  Allardice  v.  Robertson,  1  Dow,  N.  s.  514  ;  1  Dow.  & 
Clark,  495  ;  6  Shaw  &  Dun.  242  ;  7  Shaw  &  Dun.  691  ;  4  "Wil.  &  Shaw,  App.  Cas. 
102  ;  Pratt  v.  Gardner,  2  Cushing  (Massachusetts),  63. 

But  a  magistrate's  clerk  has  no  right  to  make  any  obsei'vation  on  the  conduct  of  the 
parties  before  the  court ;  and  no  such  observation  will  be  privileged.  Delegal  v.  High- 
ley,  3  Bing.  N.  C.  950  ;  5  Scott,  154  ;  3  Hodges,  158  ;  8  C.  &  P.  444. 

1  See  the  remarks  of  Lord  Coleridge,  C.J.,  in  Seaman  v.  Netherclift,  1  C.  P.  D. 
544 ;  45  L.  J.  C.  P.  798  ;  24  W.  R.  884  ;  34  L.  T.  878. 

173 


*  190  ABSOLUTE   PEIVILEGE. 

Counsel  engaged  in  a  cause  are  privileged  to  speak  any  words, 
however  defamator}^,  that  are  in  accordance  with  their  instruc- 
tions and  are  pertinent  to  the  matter  in  question,  (a)  They  may 
draw  any  inferences  from  the  facts  given  in  evidence,  and  make 
any  imputations,  however  calumnious :  but  they  ought  not  to 
make  reckless  charges  of  which  they  can  give  no  evidence.  For 
strong  and  exaggerated  words  they  cannot  be  called  in  question, 
unless  the  charge  conveyed  by  such  words  be  wholly  unjustified 
by  the  evidence  before  the  Court.^  The  law,  in  fact,  trusts  a 
barrister  "  with  a  privilege  in  respect  of  liberty  of  speech  which 
is  in  practice  bounded  only  by  his  own  sense  of  duty."  ^ 

An  attorney  acting  as  an  advocate  in  a  county  court  enjoys  the 
same  immunit}''  as  counsel.^  So  with  a  proctor  in  an  ecclesias- 
tical court.*  The  party  himself,  because  of  his  ignorance  of  the 
proper  mode  of  conducting  a  case,  is  allowed  even  greater 

*  191    latitude.^    *  Any  observation  made  by  one  of  the  jury 

during  the  trial  is  equally  privileged,  provided  it  is  perti- 
nent to  the  enquiry.^     And  so  is  any  presentment  by  a  grand 

jury. 

A  witness  in  the  box  is  absolutely  privileged  in  answering  all 
the  questions  asked  him  by  the  counsel  on  either  side  ;  and  even  if 
he  volunteers  an  observation  (a  practice  much  to  be  discouraged) 
still  if  it  has  reference  to  the  matter  in  issue,  or  fairly  arises  out 
of  any  question  asked  him  by  counsel,  though  only  going  to  his 
credit,  such  observation  will  also  be  privileged.'^  (5)     But  a  re- 

1  Brook  V.  Sir  Henry  Montague  (1606),  Cro.  Jac.  90  ;  Mackay  v.  Ford,  5  H.  &  N. 
792  ;  29  L.  J.  Ex.  404  ;  6  Jur.  N.  S.  587  ;  8  W.  R.  586  ;  Hodgson  v.  Scarlett,  1  B. 
&  Aid.  232. 

2  Per  Erie,  C.J.,  32  L.  J.  C.  P.  147,  8. 

3  Mackay  v.  Ford,  5  H.  &  N.  792. 

*  Higginson  v.  Flaherty,  4  Ir.  C.  L.  R.  125. 

s  Per  Holroyd,  J.,  in  Hodgson  v.  Scarlett,  1  B.  &  Aid.  244. 

6  R.  V.  Skinner,  Lofft,  55. 

7  Seaman  v.  Netherclift,  1  C.  P.  D.  540  ;  2  C.  P.  D.  53  ;  46  L.  J.  C.  P.  128. 

(a)  Hastings  v.  Lusk,  22  "Wend.  410;  whether  there  was  a  privilege  at  all.     See 

Marsh  v.  Ellsworth,  50  N.  Y.  309  ;    Gil-  also  Lawson  v.  Hicks,  38  Ala.  279. 

bert  V.  People,  1  Denio,  41  ;  McLaughlin  (h)  The  privilege  of  a  witness  is  not  so 

V.  Cowley,  127  Mass.  316  ;  Ricet?.  Coolidge,  broad  in  this  country.  What  he  says  must 

121   Mass.   393  ;    Hoar  v.  Wood,  3  Met.  be  pertinent  or  believed  so  by  him.    White 

193  ;    Morgan  v.    Booth,-  13  Bush,   480  ;  v.  Carroll,  42  N.  Y.  161  ;  Allen  v.  Crofoot, 

Jennings  v.  Paine,  4  Wis.  358.     In  Lester  2   Wend.    515  ;    Barnes   v.    McCrate,    32 

V.  Thurmond,  51  Ga.  118,  the  privilege  of  Maine,  442  ;  Calkins  v.  Sumner,  13  Wis. 

an  attorney  was  treated  as  primd  facie,  193  ;  Lea  v.  White,  4  Sneed,  111  ;    Mc- 

but   the   only  question   in   the   case   was  Laughlin  v.  Cowley,  127  Mass.  316 ;  York 

174 


COUNSEL.      WITNESSES.  *  191 

mark  made  b}'  a  witness  in  the  box,  wholly  irrelevant  to  the 
matter  of  enquiry,  uncalled  for  by  any  question  of  counsel,  and 
introduced  by  the  witness  maliciously  for  his  own  purposes, 
would  not  be  privileged,  and  would  also  probably  be  a  contempt 
of  court.  So,  of  course  an  observation  made  by  a  witness  while 
waiting  about  the  Court,  before  or  ufter  he  has  given  his  evidence, 
is  not  privileged.!  Nor  is  a  private  letter  written  to  the  judge  to 
influence  his  decision .^  Such  a  letter  is  strictly  a  contempt  of 
court. 

Every  affidavit  sworn  in  the  course  of  a  judicial  proceeding 
before  a  Court  of  competent  jurisdiction  is  absolutely  privileged, 
and  no  action  lies  therefor,  however  false  and  malicious  may  be 
the  statements  made  therein.^  (a)  So  are  all  pleadings,  and  in- 
structions to  counsel.*  So  are  articles  of  the  peace  exhibited 
against  the  plaintiff.  The  only  exception  is  where  an  affi- 
davit is  sworn  recklessly  *  and  maliciously  before  a  Court  *  192 
that  has  no  jurisdiction  in  the  matter,  and  no  power  to  en- 
tertain the  proceeding.^  In  all  other  cases  the  plaintiff's  only 
remedy  is  to  indict  the  deponent  for  perjury,  if  he  dare.^  The 
Court  will,  however,  sometimes  order  scandalous  matter  in  such 

1  Trotman  v.  Dunn,  4  Camp.  211  ;  Lynam  v.  Gowing,  6  L.  R.  Ir.  259. 

2  Gould  V.  Hume,  3  C.  &  P.  625. 

8  Revis  V.  Smith,  18  C.  B.  126  ;  25  L.  J.  C.  P.  195  ;  Henderson  v.  Broomhead,  4 
H.  &  N.  569  ;  28  L.  J.  Ex.  360  ;  5  Jur.  N.  S.  1175. 

*  See  Bank  of  British  North  America  ■;;.  Strong,  1  App.  Gas.  307  ;  34  L.  T.  627. 

«  Buckley  v.  Wood,  4  Rep.  14  ;  Cro.  Eliz.  230  ;  R.  v.  Salisbury,  1  Ld.  Raym.  341  ; 
Lewis  V.  Levy,  E.  B.  &  E.  554  ;  27  L.  J.  Q.  B.  282  ;  4  Jur.  N.  S.  490. 

«  Doyle  V.  O'Doherty,  Car.  &  Mar.  418  ;  Astley  v.  Younge,  2  Burr.  807. 

V.  Rose,  2  Gray,  282  ;    Smith  v.  Howard,  vided    the    statements    are  pertinent    or 

28  Iowa,  51  ;  Storey  v.  Wallace,  60  111.  51 ;  honestly  believed  so,  and  provided  no  doubt 

Morgan  v.  Booth,  3  Bush,  480.     See  Law-  the   cause    as   regards    the    pleader    is    a 

son  V.  Hicks,  38  Ala.  279.     It  matters  not  real  one.     Wyatt  v.  Buell,    47  Cal.    624  ; 

that  the  words  are  spoken  to  the  judge  ;  Townshend,  Slander,  §  221  ;  Garr  v.  Sel- 

though  if  they  amount  to    contempt  the  den,   4  Conist.   91  ;    Gilbert  v.  People,  1 

party  may  of  course  be  punished.     Goselin  Denio,  41  ;  Warner  v.  Payne,  2  Sandf.  195; 

V.   Cannon,    1   Harr.  (Del.)    3.     While  a  Johnson  v.   Brown,   13  W.  Va.  71;   Mc- 

witness  is  not  liable  to  an  action  for  def-  Laughlin  v.  Cowley,  127  Mass.   316.     See 

aniation   when  his  testimony  is  relevant,  also  Lanning  v.  Christy,  30  Ohio  St.  115  ; 

one  who  suborns  a  witness  to  commit  per-  Whitney  v.  Allen,  62  111.   472.     Without 

jury  may  be  liable  for  the  charge  made  an  allegation  that  the  statements  were  per- 

by  the   witness   at    his    instigation,    and  tinent  or  reasonably  believed  pertinent  the 

this  without  special  damage  if  the  charge  plea  must  deny  malice  or  it  will  be  bad. 

amount  to  technical  defamation.     Rice  v.  Johnson  v.  Brown,  supra.     But   if  peiti- 

Coolidge,  121  Mass.  393.  nency  is  pleaded  malice  need  notbedenied, 

(a)  So  of  the  pleadings  generally,  pro-  the  privilege  being  absolute.  lb. 

175 


192  ABSOLUTE   PRIVILEGE. 


an  affidavit  to  be  expunged.^     But  even   for  matter   thus   ex- 
punged, no  action  can  be  brought.^ 

In  short,  "  neither  party,  witness,  counsel,  jury,  or  judge  can 
be  put  to  answer  civilly  or  criminally  for  words  spoken  in  office.""  ^ 


Illustrations. 

Defendant,  an  expert  in  handwriting,  gave  evidence  in  the  Probate  Court  in  the 
trial  of  Davies  v.  May,  that,  in  his  opinion,  the  signature  to  the  will  in  question  was  a 
forgery.  The  jury  found  in  favor  of  the  will,  and  the  presiding  judge  made  some  very 
disparaging  remarks  on  defendant's  evidence.  Soon  afterwards  defendant  was  called  as 
a  witness  in  favor  of  the  genuineness  of  another  document,  on  a  charge  of  forgery  before 
a  magistrate.  In  cross-examination  he  was  asked  whether  he  had  given  evidence  in 
the  suit  of  Davies  v.  May,  and  whether  he  had  read  the  judge's  remarks  on  his  evidence. 
He  answered,  "  Yes."  Counsel  asked  no  more  questions,  and  defendant  insisted  on 
adding,  though  told  by  the  magistrate  not  to  make  any  further  statement  as  to  Davies 
V.  May :  "I  believe  that  will  to  be  a  rank  forgpry,  and  shall  believe  so  to  the  day  of 
my  death."  An  action  of  slander  for  these  words  having  been  brought  by  one  of  the 
attesting  witnesses  to  the  will  :  held,  that  the  words  were  spoken  by  defendant  as 
a  witness,  and  had  reference  to  the  enquiry  before  the  magistrate,  as  they  tended  to 
justify  the  defendant,  whose  credit  as  a  witness  had  been  impugned  ;  and  that  the  de- 
fendant was  therefore  absolutely  privileged.  Seaman  v.  Netherclift,  1  C.  P.  D.  540  ; 
45  L.  J.  C.  P.  798  ;  24  W.  R.  884  ;  34  L.  T.  878  ;  (C.  A. )  2  C.  P.  D.  53  ;  46  L.  J.  C. 
P.  128  ;  25  W.  R.  159  ;  35  L.  T.  784. 

A  servant  summoned  his  master  before  a  Court  of  Conscience  for  a  week's 
*  193  *wa<^es.  The  master  said  :  "He  has  been  transported  before,  and  ought  to 
be  transported  again.  He  has  been  robbing  me  of  nine  quartern  loaves  a 
week."  Lord  EUenborough  held  the  remark  absolutely  privileged,  if  the  master  spoke 
them  in  opening  his  defence  to  the  Court  ;  but  otherwise  if  he  spoke  them  while  wait- 
ing about  the  room  and  not  for  the  purpose  of  his  defence.  Trotman  v.  Dunn,  4  Camp. 
211.     [N.B.  —  The  latter  part  of  the  head-note  to  this  case  is  misleading.] 

A  charge  of  felony  made  by  the  defendant  when  applying  in  due  course  to  a  justice 
of  the  peace  for  a  warrant  to  apprehend  the  plaintiff  on  that  charge  is  absolutely  privi- 
leged. Ram  V.  Lamley,  Hutt.  113.  See  Johnson  v.  Evans,  3  Esp.  32 ;  Weston  v. 
Dobniet,  Cro.  Jac.  432  ;  Dancaster  v.  Hewson,  2  Man.  &  R.  176. 

Defamatory  communications  made  by  witnesses  or  officials  to  a  Court-martial,  or  to 
a  Court  of  Inquiry  instituted  under  articles  of  war,  are  absolutely  privileged.  Keighley 
V.  Bell,  4  F.  &  F.  763  ;  Dawkins  v.  Lord  Rokeby,  L.  R.  8  Q.  B.  255  ;  42  L.  J.  Q.  B. 
63 ;  21  W.  R.  544  ;  4  F.  &  F.  806  ;  28  L.  T.  134  ;  L.  R.  7  H.  L.  744  ;  45  L.  J.  Q.  B. 
8;  23  W.  R.  931;  33  L.  T.  196. 

No  action  will  lie  for  defamatory  expressions  against  a  third  party,  contained  in  an 
affidavit  made  and  used  in  the  proceedings  in  a  cause,  though  such  statements  be  false, 
to  the  knowledge  of  the  party  making  them,  and  introduced  out  of  malice.  Hender- 
son V.  Broomhead,  28  L.  J,  Ex.  360  ;  4  H.  &  N.  569  ;  5  Jur.  N.  S.  1175  ;  Astley  v. 

1  Christie  v.  Christie,  L.  R.  8  Ch.  499  ;  42  L.  J.  Ch.  544  ;  21  W.  R.  493  ;  28  L. 
T.  607. 

2  Kennedy  v.  Hilliard,  10  Ir.  C.  L.  R.  195  ;  1  L.  T.  578. 
8  Per  Lord  Mansfield  in  R.  v.  Skinner,  Lofft,  55. 

176 


MILITAIIY   AND   NAVAL   AFFAIRS.  *  193 

Younge,  2  Burr.  807  ;  2  Ld.  Kenyon,  536  ;  Revis  v.  Smith,  18  C.  B.  126  ;  25  L.  J. 
C.  P.  195  ;  2  Jur.  N.  S.  614  ;  Hartsock  v.  Reddick,  6  Blackf,  (Indiana),  255. 

If  application  be  bond  fide  made  to  a  Court  which  the  defendant  by  a  pardonable 
error  honestly  believes  to  have  a  jurisdiction  which  it  has  not,  the  privilege  will  not 
be  lost  merely  by  reason  of  this  error.  Buckley  v.  AVood,  4  Rep.  14  ;  Cro.  Eliz.  230  ; 
McGregor  v.  Thwaites,  3  B.  &  C.  24  ;  4  D.  &  R.  695  ;  Thorn  v.  Blanchard,  5  Johns' 
508. 

But  in  other  cases  an  affidavit  made  voluntarily  when  no  cause  is  pending,  or  made 
coram  nan  juclice,  is  not  privileged  as  a  judicial  proceeding.  Maloney  v.  Bartley, 
3  Camp.  210. 

An  attorney's  bill  of  costs  is  in  no  sense  a  judicial  proceeding,  though  delivered 
under  a  judge's  order,  and  can  claim  no  privilege.     Bruton  v.  Downes,  1  F.  &  F.  668. 

Reports  of  judicial  proceedings  are  not  absolutely  privileged,  however  fair 
*and  accurate  they  may  be  ;  the  plaintiff  may  still  prove  that  the  reporter    *  194 
acted  maliciously  in  sending  the  report  to  the  newspaper.     Stevens  v.  Samp- 
son, 5  Exch.  D.  53  ;  49  L.   J.  Q.  B.  120  ;  28  W.  R.  87  ;  41  L.  T.  782  ;  Salmon  v. 
Isaac,  20  L.  T.  885. 

(iii.)  Naval  and  Military  affairs^  ^c. 
A  similar  immunity,  resting  also  on  obvious  grounds  of  public 
policy,  is  accorded  to  all  reports  made  by  a  military  officer  to  his 
military  superiors  in  the  course  of  his  duty,  and  to  evidence  given 
by  any  military  man  to  a  court  martial  or  other  military  court  of 
inquiry ;  it  being  essential  to  the  welfare  and  safety  of  the  State 
that  military  discipline  should  be  maintained  without  any  inter- 
ference by  civil  tribunals.  In  short,  "  all  acts  done  in  the  honest 
exercise  of  military  authority  are  privileged."  The  law  is,  of 
course,  the  same  as  to  the  navy.  Naval  and  military  matters 
are  for  naval  and  military  tribunals  to  determine,  and  not  the 
ordinary  civil  courts.^  A  similarly  absolute  privilege  extends 
to  all  acts  of  State,  and  to  the  official  notification  thereof  in  the 
London  Gazette,  to  all  State  papers,  and  to  all  advice  .given  to 
the  Crown  by  its  ministers. 

Ilhistrations. 

A  military  Court  of  Inquiry  may  not  be  strictly  a  judicial  tribunal,  but  where  such 
Court  has  been  assembled  under  the  orders  of  the  General  Commanding-in-Chief  in 
conformity  with  the  Queen's  Regulations  for  the  government  of  the  army,  a  witness 
who  gives  evidence  thereat  stands  in  the  same  situation  as  a  witness  giving 
evidence  before  a  judicial  tribunal,  and  *  all  statements  made  by  him  thereat,  *  195 
whether  orally  or  in  writing,  having  reference  to  the  subject  of  the  inquiry, 

1  Hart  V.  Gumpach,  L.  R.  4  P.  C.  439  ;  9  Moore  P.  C.  C.  N.  S.  241;  42  L.  J. 
P.  C.  25  ;  21  W.  R.  365  ;  Dawkins  v.  Lord  Paulet,  L.  R.  5  Q.  B.  94  ;  39  L.  J.  Q.  B. 
53  ;  18  W.  R.  336  ;  21  L.  T.  584  ;  Dawkins  v.  Lord  Rokeby,  L.  R.  7  H.  L.  744  ;  45 
L.  J.  Q.  B.  8  ;  23  W.  R.  931;  33  L.  T.  196  ;  4  F.  &  F.  806. 

12  177 


*195  ABSOLUTE   PRI\^LEGE. 

are  absolutely  privileged.  Dawkins  v.  Lord  Eokeby,  L.  R.  7  H.  L.  744  ;  45  L.  J.  Q. 
B.  8  ;  23  W.  R.  931 ;  33  L.  T.  196  ;  in  the  Exch.  Ch.  L.  R.  8  Q.  B.  255.  And  see 
Keighley  v.  Bell,  4  F.  &  F.  763  ;  Home  v.  Bentinck,  2  B.  &  B.  130  ;  4  Moore,  563. 

The  defendant,  being  the  jjlaintiff's  sui^erior  officer,  in  the  course  of  his  military 
duty  forwarded  to  the  Adjutant-General  certain  letters  written  by  the  plaintiff,  and  at 
the  same  time,  also  in  accordance  with  his  military  duty,  reported  to  the  Commander- 
in-Chief  on  the  contents  of  such  letters,  using  words  defamatory  of  the  plaintiff.  It 
was  alleged  that  the  defendant  did  so  maliciously,  and  without  any  reasonable,  prob- 
able, or  justifiable  cause,  and  not  in  the  bond  fide  discharge  of  his  duty  as  the  plain- 
tiffs superior  officer.  Held,  on  demurrer,  by  the  majority  of  the  Court  of  Q.  B. 
(Mellor  and  Lush,  JJ.),  that  such  reports  being  made  in  the  course  of  military  duty 
were  absolutely  privileged,  and  that  the  civil  courts  had  no  jurisdiction  over  such 
purely  military  matters.  Cockburn,  C.J.,  dissented  on  the  grounds  that  it  never  could 
be  the  duty  of  a  military  officer  falsely,  maliciously,  and  without  reasonable  and  prob- 
able cause  to  libel  his  fellow-officer,  that  the  courts  of  common  law  have  jurisdiction 
over  all  wilful  and  unjust  abuse  of  military  authority,  and  that  it  would  not  in  any 
way  be  destructive  of  military  discipline  or  of  the  efficiency  of  the  army  to  submit 
questions  of  malicious  oppression  to  the  opinion  of  a  jury.  Dawkins  v.  Lord  Paulet, 
L.  R.  5  Q.  B.  94  ;  39  L.  J.  Q.  B.  53  ;  18  W.  R.  336  ;  21  L.  T.  584. 

[N.B. There  was  no  appeal  in  this  case.     The  arguments  of  Cockburn,  C.J., 

deserve  the  most  careful  attention.  In  Dawkins  v.  Lord  Eokeby,  sujrra,  the  decision 
of  the  House  of  Lords  turned  entirely  on  the  fact  that  the  defendant  was  a  witness. 
Neither  Kelly,  C.B.,  nor  any  of  the  Law  Lords  (except  perhaps  Lord  Penzance),  rest 
their  judgment  on  the  incompetency  of  a  court  of  common  law  to  inquire  into  purely 
military  matters.  The  Court  of  Exchequer  Chamber  no  doubt  express  an  opinion  that 
"questions  of  military  discipline  and  military  duty  alone  are  cognisable  only  by  a 
military  court,  and  not  by  a  court  of  law"  (L.  R.  8  Q.  B.  271).  But  after  refen-ing  to 
"the  eloquent  and  powerful  reasoning  of  L.C.J.  Cockburn  in  Dawkins  v.  Lord  F. 
Paulet,"  the  Court  goes  on  to  express  its  satisfaction  that  the  question  "  is  yet  open  to 
final  consideration  before  a  court  of  the  last  resort."  However  in  a  court  of  first  instance, 
at  all  events,  it  must  now  be  taken  to  be  the  law  that  the  civil  courts  of  common  law 
can  take  no  cognisance  of  purely  military  or  purely  naval  matters  (Sutton  v.  John- 
stone (1785),  IT.  R.  493  ;  Grant  v.  Gould  (1792),  2  Hen.  Bl.  69  ;  Barwiss  v.  Keppel 
(1766),  2  Wils.  314)  ;  but  wherever  the  civil  rights  of  a  person  in  the  military  or  naval 
service  are  affected  by  any  alleged  oppression  or  injustice  at  the  hands  of  his  superior 
officers  or  any  illegal  action  on  the  part  of  a  military  or  naval  tribunal,  there  the  civil 
couris  may  interfere.     Ee  Mansergh,  1  B.  &  S.  400  ;  30  L.  J.  (Q.  B.)  296  ;  Warden  v. 

Bailey,  4  Taunt.  67. 
*  196        *But  private  letters  written  by  the  commanding  officer   of  the  regiment  to 
his  immediate  superior  on  militarj'  matters,  as  distinct  from  his  official  re- 
ports, are  not  absolutely  privileged ;  but  the  question  of  malice  should  be  left  to  the 
jury.     Dickson  v.  Eari  of  Wilton,  1  F.   &  F.  419  ;  Dickson  v.  Combermere,  3  F.  & 

F.  527. 

rx.B. If  this  be  not  the  distinction,  these  cases  must  be  taken  to  be  overruled 

by  the  cases  cited  above.     See  L.  R.  8  Q.  B.  272-3.] 

By  a  general  order  it  was  declared  that  all  unemployed  Indian  officers  ineligible  for 
public  employment  by  reason  of  misconduct  or  physical  or  mental  inefficiency  should 
be  removed  to  the  pension  list.  Under  this  order  the  plaintiff  was  removed  to  the 
pension  list  and  a  notification  of  such  removal  was  published  in  the  Indian  Gazette. 
Held,  on  demuiTer,  that  no  action  lay  either  for  the  removal  of  the  plaintiff,  or  for  the 
official  publication  of  the  fact :  although  special  damage  was  alleged.     Grant  v.  Secre- 

178 


QUALIFIED   PEIVILEGE.  *  196 

tary  of  State  for  India,  2  C.  P.  D.  445  ;  25  W.  E.  848  ;  37  L.  T.  188.     See  Doss  v. 

Secretary  of  State  for  India  in  Council,  L.  R.  19  Eq.  509  ;  23  W.  R.  773 ;  32  L.  T. 
294  ;  and  Oliver  v.  Lord  Wm.  Bentinck,  3  Taunt.  456. 


PART  II. 

II.     QUALIFIED   PRIVILEGE. 


Cases  of  qualified  privilege   may  be   grouped  under  three 
heads : 
I.    Where  circumstances  cast  upon  the  defendant  the  duty  of 
making  a  communication  to   a  certain  other  person,  to 
whom  he  makes   such  communication  in  the  bond  fide 
performance  of  such  duty. 
II.   Where  the  defendant  has  an  interest  in  the  subject  matter 
of  the  communication,  and  the  person  to  whom  he  com- 
municates it  has  a  corresponding  interest. 
III.    Fair  and  impartial  reports  of  the  proceedings  of  any  Court 
of  Justice  or  of  Parliament,  (a) 
*  In  all  these  instances,  if  the  commuiiication  has  been    *  197 
made  fairly,  impartially,  without  exaggeration  or  the  intro- 
duction of  irrelevant  calumniatory  matter,  the  communication  is 
held  privileged.     The  first  two  classes  are  often  stated  as  one,  and 
cases  may  frequently  occur,  which  may  seem  to  fall  in  either  or 
both  of  them.     But  the  distinction  which  I  propose  to  draw  be- 
tween them  is  this: — in  the  first  class  of  cases,  the  defendant 
makes  the  communication,  perhaps  to  an  entire  stranger,  generally 
to  one  with  whom  he  has  had  no  previous  concern  ;  and  he  does 
so  because  he  feels  it  to  be  his   duty  so  to  do.     The  person  to 
whom  he  makes  the  communication  is  under  no  corresponding 
obligation  ;  and  generally  has  no  common  interest  with  the  de- 
fendant in  the  matter.     The  defendant's  duty  would  be  the  same 
to  whomsoever  the  communication  had  to  be  made. 

In  the  second  class  of  cases,  however,  there  must  have  been  an 
intimate  relationship  or  connexion  already  established  between 

(a)  Upon  the  division  of  qualified  privi-     Hilliard,  L.  R.  9  Ex.  79  ;  Dillard  v.  Col- 
lege see  Foster  v.  Scripps,  39  Mich.   376,     lius,  25  Gratt.  343. 
following  the   division   in   Dickenson    v, 

179 


*  197  QUALIFIED  PRIVILEGE. 

the  defendant  and  the  person  to  whoni  he  makes  the  communica- 
tion, and  it  is  because  of  this  rehitionship  that  the  communication 
is  privileged.  The  same  words,  if  uttered  to  another  person  with 
whom  the  defendant  had  no  such  connexion,  would  not  be  privi- 
leged. 

The  third  class  of  cases  might  be  included  in  either  of  the  two 
preceding,  for  it  is  the  dut}'  of  a  newspaper  reporter  to  present  to 
the  public  fair  and  impartial  reports  of  such  proceedings,  while 
on  the  other  hand,  as  one  of  the  public,  he  has  a  common  interest  i 
with  the  public  in  ensuring  that  such  proceedings  should  be  re- 
ported with  accuracy  and  uniformity. 

Bond  fide  comments  on  matters  of  public  interest,  which  are 
sometimes  treated  as  a  fourth  class  of  privileged  communications, 
have  been  dealt  with  under  the  head  of  Defamatory  Words.^ 

*  198    *  I.   Where  circumstances  exist,  or  are  reasona- 

bly BELIEVED  BY  THE  DEFENDANT  TO  EXIST,  WHICH 
CAST  UPON  HIM  THE  DUTY  OF  MAKING  A  COMMUNICA- 
TION TO  A  CERTAIN  OTHER  PERSON,  TO  WHOM  HE 
MAKES  SUCH  COMMUNICATION  IN  THE  BONA  FIDE  PER- 
FORMANCE  OF   SUCH   DUTY. 

The  duty  may  either  be  one  which  the  defendant  OM^es  to  soci- 
ety or  one  which  he  owes  to  his  family  or  to  himself.  It  will  be 
convenient  therefore  to  treat  these  cases  in  the  following  order  :  — 

A.  Communications  made  in  pursuance  of  a  duty  owed  to  so- 
ciety. 

(i.)  Characters  of  servants. 

(ii.)  Other  confidential  communications  of  a  private  nature. 
(iii.)  Information  given  to  any  public  officer  imputing  crime 
or  misconduct  to  others. 

B.  Communications  made  in  self-defence. 

(iv.)  Statements  necessary  to  protect  the  defendant's  private 

interests, 
(v.)  Statements  provoked  or  invited  b}^  previous  words  or  acts 

of  the  plaintiff. 

In  all  these  cases  the  duty  referred  to  need  not  be  one  binding 
at  law  :  any  "  moral  or  social  duty  of  imperfect  obligation  "  will 

1  Chap.  II.,  ante,  pp.  34-52. 

180 


DUTY  TO   SOCIETY.  *  198 

be  sufficient.  ^  («)  And  it  is  sufficient  that  the  defendant  should 
honestly  believe  that  he  has  a  duty  to  perform  in  the  matter, 
although  it  may  turn  out  that  the  circumstances  were  not 
such  as  he  reasonably  concluded  them  to  be.^  *  It  is  a  *  199 
question  of  bona  fides,  in  determining  which  the  Court  will 
look  at  the  circumstances  as  they  presented  themselves  to  the 
mind  of  the  defendant  at  the  time  of  publication  ;  supposing  of 
course  that  he  is  guilty  of  no  laches,  and  does  not  wilfully  shut 
his  eyes  to  any  source  of  information.  If  indeed  there  were 
means  at  hand  for  ascertaining  the  truth  of  the  matter,  of  which 
the  defendant  neglects  to  avail  himself  and  chooses  rather  to  re- 
main in  ignorance  when  he  might  have  obtained  full  information, 
there  will  be  no  pretence  for  any  claim  of  privilege. 

Above  all,  the  defendant  must  at  the  date  of  the  communica- 
tion, implicitly  believe  in  its  truth.  If  a  man  knowingly  makes  a 
false  charge  against  his  neighbor,  he  cannot  claim  privilege.  It 
never  can  be  his  duty  to  circulate  lies. 

"  For,  to  entitle  matter,  otherwise  libellous,  to  the  protection 
which  attaches  to  communications  made  in  the  fulfilment  of  a 
duty,  bona  fides,  or,  to  use  our  own  equivalent,  honesty  of  purpose, 
is  essential  ;  and  to  this,  again,  two  things  are  necessary ;  1,  that 
the  communication  be  made  not  merely  in  the  course  of  duty, 
that  is,  on  an  occasion  which  would  justify  the  making  it,  but  also 
from  a  sense  of  duty ;  2,  that  it  be  made  with  a  belief  of  its 
truth." 3 

And  even  where  the  defendant,  acting  under  a  strong  sense  of 
duty,  makes  a  communication  which  he  reasonably  believes  to  be 
true,  still  he  must  be  careful  not  to  be  led  away  by  his  honest 
indignation  into  exaggerated  or  unwarrantable  expressions.  For 
the  privilege  extends  to  nothing  which  is  not  justified  by  the  oc- 

1  Per  Lord  Campbell  in  Harrison  v.  Bush,  5  E.  &  B.  344;  25  L.  J.  Q.  B.  25. 

2  Whiteley  v.  Adams,  15  C.  B.  N.  S.  392;  33  L.  J.  C.  P.  89;  12  W.  R.  153;  9  L. 
T.  483;  10  Jur.  N.  S.  470. 

3  Per  Cockburn,  C.J.,  in  Dawkins  v.  Lord  Paulet,  L.  R.  5  Q.  B.  at  p.  102. 

(a)  Shurtleff  v.   Stevens,  51  Vt.   501,  the  public  to  publish  defamatory  charges 

512  ;  Hubbard  v.  Rutledge,    57  Miss.    7  ;  against    individuals,    though    the  public 

Hamilton  v.  Eno,   81  N.  Y.  116;  Ormsby  may  have  an  interest  in  the  matter.     Fos- 

V.  Douglass,  37  N.  Y.  477  ;  VanWyck  v.  ter  v.   Scripps,    39  iMich.    376;  S.   C.  41 

Aspinwall,  17  N.  Y.  190;  Joannes  v.  Ben-  Mich.  742;  Curtis  v.  JIussey,  6  Gray,  281. 

nett,  5  Alien,  169.     But  newspapers  can-  See  Hamilton  v.  Eno,  81  N.  Y.  116. 
not   conceive   that  they  have  a  duty  to 

181 


*  199  QUALIFIED   PRIVILEGE. 

casion.     Thus  a  letter  may  be  privileged  as  to  one  part  and  not 
as  to  the  rest.' 

*  200        *  And  even  where  the  expressions  employed  are  allowable 

in  all  respects,  still  the  mode  of  publication  may  take  them 
out  of  the  privilege.  Confidential  communications  should  not 
be  shouted  across  the  street  for  all  passers-by  to  hear.  Nor  should 
they  be  committed  to  a  post  card  or  a  telegram,  which  others  will 
read.  They  should  be  sent  in  a  letter  properly  sealed  and  fast- 
ened. If  the  words  be  spoken,  the  defendant  must  be  careful  in 
whose  presence  he  speaks.  He  should  choose  a  time  when  no 
one  else  is  by  except  those  to  whom  it  is  his  duty  to  make  the 
statement.  It  is  true  that  the  accidental  presence  of  some  third 
person,  unsought  by  the  defendant,  will  not  take  the  case  out  of 
the  privilege  ;  (a)  but  it  would  be  otherwise  if  the  defendant 
purposely  sought  an  opportunity  of  making  a  communication 
prima  facie  privileged  in  the  presence  of  the  very  persons  who 
were  most  likely  to  act  upon  it  to  the  prej  udice  of  the  plaintiff.^ 

A.   Communications   made   in   pursuance   of  a  duty 

OWED   TO   SOCIETY. 

(i.)  Characters  of  servants. 

The  instance  that  occurs  most  frequently  in  ordinary  life  of 
this  first  class  of  privileged  communications  is  where  the  defend- 
ant is  asked  as  to  the  character  of  his  former  servant,  by  one  to 
whom  he  or  she  has  applied  for  a  situation.  A  duty  is  thereby 
cast  upon  the  former  master  to  state  fully  and  honestly  all  that 
he  knows  either  for  or  against  the  servant ;  and  any  communica- 
tion, made  in  the  performance  of  this  duty,  is  clearly  priv- 

*  201    ileged  for  the  sake  of  the  common  convenience  of  *  society, 

even  though  it  should  turn  out  that  the  former  master  was 
mistaken  in  some  of  his  statements.  (6)  But  if  the  master,  know- 
ing that  the  servant  deserves  a  good  character,  yet,  having  some 
grudge  against  him,  or  from  some  other  malicious  motive,  deliber- 

1  Warren  v.  Warren,  1  C.  M.  &  R.  251  ;  4  Tyr.  850;  Huntley  v.  Ward,  6  C.  B.  N. 
S.  514;  1  F.  &  F.  552;  6  Jur.  N.  S,  18;  Simmonds  v.  Dunne,  Ir.  R.  5  C.  L.  358. 

2  See/Josi,  c.  IX.  Malice. 

(«)  Hatch  V.  Lane,  105  Mass.  394  ;   Brow  v.  Hathaway,  13  Allen,  239. 
{h)  Dale  V.  Harris,  109  Mass.  193. 
182 


servants'  chaeacters.  *  201 

ately  states  what  he  knows  to  be  false,  and  gives  his  late  servant 
a  bad  character,  then  such  a  communication  is  not  a  performance 
of  the  dut}^  and  therefore  is  not  privileged.  There  is,  in  fact,  in 
such  a  case,  evidence  of  express  malice  which  "  takes  the  case  out 
of  the  privilege." 

No  one  is  bound  to  give  a  character  to  his  servant  when  asked 
for  it.i  The  old  statute  5  Eliz.  c.  4,  which  required  a  master  in 
certain  cases  to  satisfy  two  justices  of  the  peace  that  he  had  rea- 
sonable and  sufficient  cause  for  putting  away  his  servant,  has  long 
been  obsolete,  and  now  is  Avholly  repealed  by  the  38  &  39  Vict. 
c.  86,  s.  17.  But  if  any  character  is  given,  it  must  be  one  fully 
warranted  by  the  facts,  and  not  prompted  by  unworthy  motives. 

If,  after  a  favorable  character  has  been  given,  facts  come  to  the 
knowledge  of  the  former  master  which  indues  him  to  alter  his 
opinion,  it  is  his  duty  to  inform  the  person  to  whom  he  gave  the 
character  of  his  altered  opinion.  Hence  a  letter  written  to 
retract  a  favorable  character  previously  given,  will  also  be 
privileged.^ 

So  again  if  I  take  a  servant  with  a  good  character  given  her  by 
B.,  and  am  sadly  disappointed  in  her,  I  may  write  and  inform  B. 
that  she  does  not  deserve  the  character  he  gave  her,  so  that  he 
may  refrain  from  recommending  her  to  others ;  and  such 
a  letter  would  be  privileged.^  *  A  master  may  also  warn  *  202 
his  present  servants  against  associating  with  a  former 
servant  whom  he  has  discharged,  and  state  his  reasons  for  dis- 
missing him.^ 

But  if  I  happen  to  hear  that  a  discharged  servant  of  mine  is 
about  to  enter  the  service  of  B.,  it  may  be  questioned  whether  it 
is  my  duty  to  write  off  at  once  and  inform  B.  of  the  servant's 
misconduct.  It  is  certainly  safer  to  wait  till  B.  applies  to  me  for 
the  servant's  character.  Eagerness  to  prevent  a  former  servant 
obtaining  another  place  has  the  appearance  of  malice,  and  if  it 
were  found  that  I  wrote  systematically  to  every  one  to  whom  the 
plaintiff  applied  for  work,  the  jury  would  probably  give  damages 

1  Carrol  v.  Bird,  3  Esp.  201. 

2  Gardner  v.  Slade,  13  Q.  B.  796;  18  L.  J.  Q.  B.  334;  13  Jur.  826;  Child  v.  Aff- 
leck &  wife,  9  B.  &  C.  403;  4  M.  &  R.  338. 

8  Dixon  V.  Parsons,  1  F.  &  F.  24.  But  see  the  dicta  in  Fryer  v.  Kinnersley,  15  C. 
B.  N.  S.  429;  33  L.  J.  C.  P.  96;  10  Jur.  N.  S.  441. 

5  Somerville  v.  Hawkins,  10  C.  B.  590;  20  L.  J.  C.  P.  131;  15  Jur.  450. 

183 


*202  QIJALBFTED  PEIVILEGE. 

against  me.  On  tlie  other  hand,  if  B.  was  an  intimate  friend 
or  a  relation  of  mine,  and  there  was  no  other  evidence  of  malice 
except  that  I  volunteered  the  information,  the  occasion  would  still 
be  privileged.  In  short  when  a  master  "  volunteers  to  give  the 
character,  stronger  evidence  will  be  required  that  he  acted  ho7id 
fide,  than  in  the  case  where  he  has  given  the  character  after  being 
required  so  to  do."  ^ 

Illustrations. 

After  a  mercantile  firm  has  given  to  one  of  its  clerks  a  general  recommendation  by 
means  of  which  he  obtains  a  situation,  if  a  partner  subsequently  discover  facts  which 
alter  his  opinion  of  that  clerk's  character,  it  is  his  duty  to  communicate  the  new  facts 
and  his  change  of  opinion  to  the  new  employer  of  that  clerk,  in  order  to  guard  against 
his  being  misled  by  the  previous  recommendation  of  the  firm,  f  owles  v.  Bowen,  3 
Tiffany  (30  N.  Y.  R.),  20. 

Sir  Gervas  Clifton  never  made  any  complaint  of  his  butler's  conduct  while  he  was 
with  him  ;  but  he  suddenly  dismissed  him  without  notice  and  without  a  month's 
wages.  The  butler  (naturallj^,  but  illegally)  refused  to  leave  the  house  without  a 
month's  wages  ;  a  violent  altercation  took  place,  and  eventually  a  policeman  was  sent 
for  who  forcibly  ejected  the  butler.  Sir  GeiTas  subsequently  gave  the  butler 
*  203  a  very  bad  character,  in  too  strong  *  terms,  and  making  some  charges  against 
him  which  were  wholly  unfounded.  Verdict  for  the  plaintiff.  Damages,  £20. 
New  trial  refused.     Eogers  v.  Clifton,  3  B.  &  P.  587. 

The  defendant  on  being  applied  to  for  the  character  of  the  plaintiff,  who  had  been 
his  saleswoman,  charged  her  with  theft.  He  had  never  made  such  a  charge  against  her 
till  then  ;  he  told  her  that  he  would  say  nothing  about  it  if  she  resumed  her  employ- 
ment at  his  house  ;  subsequently  he  said  that  if  she  would  acknowledge  the  theft  he 
would  give  her  a  character.  Held,  that  there  was  abundant  evidence  that  the  charge 
of  theft  was  made  mala  fide,  with  the  intention  of  compelling  plaintiff  to  return  to  de- 
fendant's service.  Damages,  £60.  Jackson  v.  Hopperton,  16  C.  B.  N.  S.  829;  12 
W.  R.  913;  10  L.  T.  529. 

If  a  master  about  to  dismiss  his  servant  for  dishonesty  calls  in  a  friend  to  hear  what 
passes,  the  presence  of  such  third  person  does  not  take  away  privilege  from  words 
which  the  master  then  uses,  imputing  dishonesty.  Taylor  v.  Hawkins,  16  Q.  B.  308; 
20  L.  J.  Q.  B.  313;  15  Jur.  746. 

Where  a  master  discharged  his  footman  and  cook,  and  they  asked  him  his  reason 
for  doing  so,  and  he  told  the  footman,  in  the  absence  of  the  cook,  that  "he  and  the 
cook  had  been  robbing  him  ; "  and  told  the  cook,  in  the  absence  of  the  footman,  that 
he  had  discharged  her  "because  she  and  the  footman  had  been  robbing  him."  Held, 
that  these  were  privileged  communications  as  respected  the  absent  parties,  as  well  as 
those  to  whom  they  were  respectively  made.  Manby  v.  Witt,  18  C.  B.  544;  25  L.  J. 
C.  P.  294;  2  Jur.  N.  S.  1004;  Eastmead  v.  Witt,  ib. 

1  Per  Littledale,  J.,  in  Pattison  v.  Jones,  8  B.  &  Cr.  p.  586. 

184 


CONFIDENTIAL   CO]\I]MUNTCATIONS.  *  203 

(ii.)    Other  confidential  communications  of  a  i^rivate  nature. 
(a)  Answers  to  confidential  inquiries. 

The  principles  which  apply  to  characters  given  to  servants, 
govern  also  all  other  answers  to  private  and  confidential  in- 
quiries, (a) 

If  the  owner  of  a  vacant  farm  ask  me  as  to  the  character  of  a 
person  ajiplying  to  become  his  tenant,  my  answer  would  be  priv- 
ileged. So  if  a  friend  of  mine  comes  down  into  the  country  to 
live  near  me,  and  asks  my  advice  as  to  the  tradesmen,  or  doctor, 
he  shall  employ,  I  may  tell  him  my  opinion  of  the  various 
tradesmen,  *  or  doctors,  in  the  locality,  without  fear  of  an  *  204 
action  for  slander. 

In  short,  whenever  in  answering  an  inquiry  the  defendant  is 
acting  bond  fide  in  the  discharge  of  any  legal,  moral,  or  social 
duty,  his  answer  will  be  privileged.  (&)  "  Every  one  owes  it  as 
a  duty  to  his  fellow  men  to  state  what  he  knows  about  a  person, 
when  inquiry  is  made."  ^ 

So  too  it  is  a  duty  every  one  owes  to  society  to  assist  in  the 
discovery  of  a  criminal,  and  to  afford  all  information  which  will 
lead  to  liis  conviction.  "  It  is  a  perfectly  privileged  communica- 
tion, if  a  party  who  is  interested  in  discovering  a  wrong  doer, 
comes  and  makes  inquiries  and  a  person  in  answer  makes  a  dis- 
covery, or  a  bond  fide  communication  which  he  knows,  or  believes 
to  be  true,  although  it  may  possibly  affect  the  character  of  a 
third  person."  ^  (c)  * 

1  Per  Grove,  J.,  in  Robsliaw  v.  Smith,  38  L.  T.  423.  And  see  Lentner  v.  MerfielJ 
(C.  A.);   Times  for  May  6th,  1880. 

2  Per  Parke,  B.,  in  Kine  v.  Sewell,  3  M.  &  AV.  302. 

(a)  To  translate  slanderous  language  v.  Bradstreet,  46  N.  Y.  188 ;  Taylor  v. 
used   by  another  in   a   foreign  tongue  is     Church,  4  Seld.  452. 

privileged  2^^i^»-^  facie  if  done  at  the  re-  (c)  Eanies    v.    Whittaker,    123    Mass. 

quest  of  an  advising  lawyer.     Zuckerman  342.     So  traders  who  have  been  defrauded 

V.  Sonnenschein,  62  111.  115.     But  privi-  by  the  plaintiff  among  others  may  join  in 

lege  does  not  arise  from  mere  inquii-y.    The  a   {)aper  asserting   that   they   have    been 

inquirer  should   have  an  interest,  or  the  "robbed  and  swindled"  by  the  plaintiff 

person  giving  the  communication  a  duty  among  others,  promising  therein  to  aid  in 

towards  him.     York  v.  Johnson,  116  Mass.  prosecuting  the  paities  named,  if  signed 

482.  in  good  faith  and  believed  true  on  reason- 

(b)  Long  V.  Peters,  47  Iowa,  239 ;  able  grounds.  Klinck  v.  Colby,  46  N.  Y. 
State  V.  Lonsdale,  43  Wis.  348  ;  Sunderlin  427. 

185 


*  204  QUALIFIED    PRIVILEGE. 

And  when  once  such  a  confidential  inquiry  is  set  on  foot,  all 
subsequent  interviews  between  the  parties  will  be  privileged,  so 
long  as  what  takes  place  thereat  is  still  relevant  to  the  original 
inquiry.^ 

Of  course  the  defendant  must  honestly  believe  in  the  truth  of 
the  charge  he  makes  at  the  time  he  makes  it.  And  this  implies 
that  he  must  have  some  ground  for  the  assertion :  it  need  not  be 
a  conclusive  or  convincing  ground :  but  no  charge  should  ever  be 
made  recklessly  and  wantonly,  even  in  confidence.  The  inquirer 
should  be  put  in  possession  of  all  you  know,  and  of  your  means 
of  knowledge ;  if  your  only  means  of  knowledge  is  hear- 

*  205    say,  *  tell  him  so  :  do  not  state  a  rumor  as  a  fact ;  and  in 

repeating  a  rumor,  be  careful  not  to  heighten  its  color  or 
exaggerate  its  extent.  If  the  only  information  you  possess  is 
contained  in  a  letter,  it  is  best  to  give  him  the  letter  and  leave 
liim  to  draw  his  own  conclusions.^  Do  not  speak  with  the  air  of 
knowing  of  your  own  knowledge  every  word  you  say  to  be  the 
fact,  when  you  are  merely  repeating  gossip  or  hazarding  a  series 
of  reckless  assertions.  If  time  allows,  and  means  of  inquiry  exist, 
you  should  make  some  attempt  to  sift  the  charge,  before  yoM 
spread  it.  In  short,  confidential  advice  should  be  given  seriously 
and  conscientiously :  it  should  be  manifest  that  you  do  not  take 
a  pleasure  in  maligning  the  plaintiff,  but  are  compelled  to  do  so 
in  the  honest  discharge  of  a  painful  duty. 

And,  above  all,  the  answer  must  be  pertinent  to  the  inquiry. 
If  I  am  asked  the  plaintiff's  name  or  address,  I  must  not  commence 
to  disparage  the  plaintiff's  credit,  conduct,  family  or  wares.  In 
fact,  the  reply  must  be  an  answer  to  the  question  or  reasonably 
induced  thereby  and  not  irrelevant  information  gratuitously  vol- 
unteered.3  It  is  for  the  jury  in  each  case  to  determine  whether 
what  passed  was  or  was  not  relevant  to  the  inquiry,  and  whether 
or  no  the  information  was  given  confidentially. 

1  Beatson  v.  Skene,  5  H.  &  N.  838;  29  L.  J.  Ex.  430;  6  Jur.  ¥.  S.  780;  2  L.  T. 
378;  Hopwood  v.  Thoni,  8  C.  B.  293;  19  L.  J.  C.  P.  94;  14  Jur.  87;  Wallace  v.  Car- 
roll, 11  Jr.  C.  L.  R.  485. 

2  Coxhead  v.  Richards,  2  C.  B.  569;  15  L.  J.  C.  P.  278;  10  Jur.  984;  Robshaw  v. 
Smith,  38  L.  T.  423. 

3  Southam  v.  Allen,  Sir  T.  Raym.  231;  Huntley  v.  Ward,  6  C.  B.  N.  S.  514. 

186 


CONFIDENTIAL  ADVICE.  *  205 


Illustrations. 

If  a  friend  tells  me  he  wants  a  good  solicitor  to  act  for  him  and  asks  mj'  opinion  of 
Smith,  I  am  justified  in  telling  him  all  I  know  for  or  against  Smith.  But  if  a  stranger 
asked  me  in  the  train  :  "  Is  not  that  gentleman  a  solicitor  ? "  I  should  not,  it  is  sub- 
mitted, be  privileged  in  replying  :  "  Yes,  but  he  ought  to  have  been  struck  off  the 
rolls  long  ago." 

If  A   is  about  to  have  dealings  with  B.,  but  first  comes  to  C.  and  confiden- 
tially asks  him  his  opinion  of  B.,  C.'s  answer  is  privileged.     "Every  one 
*  is  quite  at  liberty  to  state  his  opinion  bond  fide  of  the  respectability  of  a     *  206 
party  thus  inquired   about."     Per  Lord  Denman  in  Storey  v.  Challands,  8 
C.  &  P.  234. 

Plaintiff  had  been  tenant  to  the  defendant ;  a  wine-broker  went  to  defendant  to  ask 
him  plaintiffs  present  address.  Defendant  commenced  to  abuse  the  plaintiff.  The  broker 
said  :  "I  don't  come  to  inquire  about  his  character,  but  only  for  his  address  ;  I  have 
done  business  with  him  before."  But  the  defendant  continued  to  denounce  the  plain- 
tiff as  a  swindler,  adding  however,  "I  speak  in  confidence."  The  broker  thanked  de- 
fendant for  his  remarks  and  declined  in  future  to  trust  the  plaintiff.  Held,  that  it 
was  rightly  left  to  the  jury  to  say  if  defendant  spoke  bond  fide  or  maliciously.  Picton 
V.  Jackman,  4  C.  &  P.  257;  Southam  v.  Allen,  Sir  T.  Raymond,  231. 

Watkins  met  the  defendant  in  Brecon,  and  addressing  him  said,  "  I  hear  that  you 
say  the  bank  of  Bromage  and  Snead  at  Monmouth  has  stopped.  Is  it  trae  ?"  De- 
fendant answered,  "Yes,  it  is.  I  was  told  so.  It  was  so  reported  at  Cricklewell,  and 
nobody  would  take  their  bills,  and  I  came  to  town  in  consequence  of  it  myself."  Held, 
that  if  the  defendant  understood  Watkins  to  be  asking  for  information  by  which  to 
regulate  his  conduct,  and  spoke  the  words  merely  by  way  of  honest  advice,  they  were 
prinid  facie  privileged.  Bromage  v.  Prosser,  4  B.  &  Cr.  247;  1  C.  &  P.  475;  6  D.  & 
R.  296. 

The  defendant  was  asked  to  sign  a  memorial,  the  object  of  which  was  to  retain  the 
plaintiff  as  trustee  of  a  charity  from  which  office  he  was  about  to  be  removed.  The  de- 
fendant refused  to  sign,  and  on  being  pressed  for  his  reasons,  stated  them  explicitly. 
Held,  a  privileged  communication.  Cowles  v.  Potts,  34  L.  J.  Q.  B.  247;  11  Jur.  N.  S. 
946;  13  W.  R.  858. 

The  plaintiff  had  been  a  Major-General  commanding  a  coqis  of  irregular  troops  dur- 
ing the  war  in  the  Crimea.  Complaint  having  been  made  of  the  insubordination  of  the 
troops,  the  corps  commanded  by  the  jilaintiff  was  placed  under  the  superior  command 
of  General  Vivian.  The  plaintiff  then  resigned  his  command,  and  General  Vivian 
directed  General  Shirley  to  in(|uire  and  report  on  the  state  of  the  corps,  and  particularly 
referred  him  for  information  on  the  matter  to  the  defendant,  who  was  General  Vivian's 
private  secretary  and  civil  commissioner.  All  communications  made  by  the  defendant 
to  General  Shirley  touching  the  corps  and  the  plaintiffs  management  of  it  are  priv- 
ileged, if  the  jury  find  that  the  defendant  at  the  time  honestly  believed  that  he  was 
acting  within  the  scope  of  his  duty  in  making  them.  Beatson  v.  Skene,  5  H.  &  N. 
838;  29  L.  J.  Ex.  430;  6  Jur.  N.  S.  780;  2  L.  T.  378;  Hopwood  v.  Thorn,  8  C.  B. 
293;  19  L.  J.  C.  P.  94;  14  Jur.  87. 

A.,  B.,  and  C.  are  brother  officers  in  the  same  regiment.     A.  meets  B.  and  says,  "I 
have  learned  that  C.  has  been  guilty  of  an  atrocious  offence  :  I  wish  to  consult 
you  whether  I  should  divulge  it — whether  I  should  speak  *of  it  to  the  com-         207 
manding  officer."      Such   remark  and  the  discussion  that  ensued  would  be 

187 


*  207  QUALIFIED   PKIVILEGE. 

privileged,  if  bond  fide.     Per  Pigot,  C.B.,  in  Bell  v.  Parke,  10  Ir.  C.  L.  E.  284.    [The 
decision  in  the  case  turned  on  the  language  of  the  plea.] 

The  plaintiff  was  a  London  merchant  who  had  had  business  relations  with  the  Lon- 
don and  Yorkshire  Bank  (Limited).  The  defendant,  the  manager  of  that  bank,  on 
beino-  applied  to  by  one  Hudson  for  information  about  the  plaintiff,  showed  Hudson  an 
anonymous  letter  which  the  bank  had  received  about  the  plaintiff,  and  which  contained 
the  libel  in  question.  Held,  that  handing  Hudson  the  letter  in  confidence  was  a  privi- 
leo-ed  communication.  Grove,  J. ,  in  refusing  a  rule  for  a  new  trial  made  the  following 
remarks  : —  "The  defendant  did  not  act  as  a  volunteer,  but  was  applied  to  for  infor- 
mation. When  applied  to  he  did  give  such  information  as  he  possessed.  He  might 
have  refused  to  give  that  information.  He  had  no  legal  duty  cast  upon  him  to  give 
any  oiiinion.  But  he  was  entitled  to  give  his  opinion  when  asked,  and  a  fortiori,  as  it 
seems  to  me,  to  show  any  letters  he  had  received  bearing  on  the  subject.  If  one  man 
shows  another  a  lettei',  he  leaves  him  to  estimate  what  value  attaches  to  it ;  whereas 
any  opinion  he  gives  might  be  based  on  very  insufficient  grounds.  It  is  better  to  state 
facts  than  to  give  an  opinion.  Every  one  owes  it  as  a  duty  to  his  fellow-men  to  state 
what  he  knows  about  a  person,  when  inquiry  is  made  ;  otherwise  no  one  would  be  able 
to  discern  honest  men  from  dishonest  men.  It  is  highly  desirable,  therefore,  that  a 
privilege  of  this  sort  should  be  maintained.  An  anonymous  letter  is  usually  a  very 
despicable  thing.  But  anonymous  letters  may  be  very  important,  not  by  reason  of 
what  they  say,  but  because  they  lead  to  inquiry,  which  may  substantiate  what  they 
have  said.  It  seems  to  me,  therefore,  that  he  was  fully  entitled  to  show  this  anony- 
mous letter  for  what  it  was  worth."     Eobshaw  v.  Smith,  28  L.  T.  423. 


(J)    Confidential  communications  not  in  answer  to  a  previous 

inquire/. 

In  the  cases  just  quoted  stress  is  laid  on  the  fact  that  the  de- 
fendant did  not  volunteer  the  information,  but  was  expressly 
applied  to  for  it.  This  is  alwaj's  no  doubt  a  very  material  fact  in 
the  defendant's  favor  ;  but  it  is  never  alone  decisive.  Many  oc- 
casions are  privileged  in  which  no  application  is  made  to  the  de- 
fendant, but  he  himself  takes  the  initiative  ;  while,  on  the  other 
hand,  as  we  have  seen,  many  answers  to  inquiries  will  not  ne- 
cessarily  be  privileged,  even  if   given  confidentially,  (a)     The 

question  in  every  case  is  this:  —  Were  the  circumstances 
*  208    *  such  that  an  honest  man  might  reasonably  suppose  it  his 

duty  to  act  as  the  defendant  has  done  in  this  case  ?  And 
the  circumstances  may  be  such  that  it  is  clearly  the  duty  of  a 
good  citizen  to  go  at  once  to  the  person  most  concerned  and  tell 
him  everything,  without  waiting  for  him  to  come  and  inquire. 

(a)  York  v.  Johnson,   116  Mass.  482.  whom  the  statement  is  made.     Seee.^r.  Al- 

For  the  confidential  or  other  justifying  re-  pin  v.  Morton,  21  Ohio  St.  536  ;  Joannes 

lation  should  actually  exist,  and  that  be-  i^.  Bennett,  5  Allen,  169;  Perkins  v.  Mitch- 

tween  the  defendant   and  the  person   to  ell,  31  Barb.  461. 
188 


CONFIDENTIAL   COMMUNICATIONS.  *  208 

It  may  well  be  that  he  has  no  suspicions,  and  never  would  in- 
quire into  the  matter  unless  warned.^  (a) 

But  in  cases  where  neither  life  nor  property  is  in  imminent  and 
obvious  peril,  there  the  circumstance  that  the  defendant  was 
applied  to  for  tlie  information,  and  did  not  volunteer  it,  will 
materially  affect  the  issue.  Where  the  matter  is  not  of  great  or 
immediate  importance,  interference  on  ni}-  part  may  be  considered 
officious  and  meddlesome  ;  althougli,  under  the  same  circum- 
stances, every  one  would  at  once  admit  that  it  would  have  been 
my  dut}'-  to  give  all  the  information  in  my  power,  had  I  been  ap- 
plied to  for  it.  An  answer  to  a  confidential  inquiry  may  be 
privileged  where  the  same  information  if  volunteered  would  be 
actionable.  Thus  I  am  not  justified  in  standing  at  the  door  of  a 
tradesman's  shop  and  voluntarily  defaming  his  character  to  his 
intending  customers.  But  if  an  intending  customer  comes  to  me 
and  inquires  as  to  the  respectability  or  credit  of  that  tradesman, 
it  is  my  duty  to  tell  him  all  I  know.^ 

In  cases  then  in  which  there  can  be  a  doubt  as  to  the  defend- 
ant's duty  to  speak,  the  fact  that  he  was  applied  to  for  the  infor- 
mation will  tell  strongly  in  his  favor.  In  cases  where  his  duty  to 
speak  was  clear  without  that,  the  fact  that  he  was  applied  to  is 
immaterial. 

Illustrations. 

Both  the  Marquis  of  Anglesey  and  his  agent  told  the  defendant,  the  tenant 
of  Haj'wood  Park  Farm,  to  inform  them  if  he  saw  or  heard  anything  *  wrong  *  209 
respecting  the  game.  The  defendant  heard  that  the  gamekeeper  was  selling 
the  game,  and  believing  the  fact  to  be  so,  wrote  and  informed  the  Marquis.  Held, 
that  the  letter  was  privileged  ;  but  Parke,  J.,  intimated  that  if  the  defendant  had  not 
been  previously  directed  to  communicate  anything  he  thought  going  wrong,  the  letter 
would  have  been  unauthorized  and  libellous.  Cockayne  v.  Hodgkisson,  5  C.  &  P.  543. 
See  King  v.  Watts,  8  C.  &  P.  615. 

If  a  master,  hearing  that  a  discharged  servant  is  seeking  to  enter  M.'s  service, 
writes  to  M.  of  his  own  accord  to  give  the  servant  a  bad  character,  and  thus  forestalls 
any  inquiry  by  M.  ;  it  will  at  all  events  require  stronger  evidence  to  prove  that  he 
acted  bond  fide  than  it  would  had  he  waited  for  M.  to  write  and  inquire.  Pattison  v. 
Jones,  8  B.  &  C.  578  ;  3  M.  &  K.  101. 

1  See^josi!,  pp.  213-219.  2  storey  v.  Challands,  8  C.  &  P.  234. 

{a)  Fowles  v.    Bowen,   30  N.   Y.  20;  interests.      Easley   v.   Moss,  9  Ala.  266; 

Mott  i;.  Dawson,  46  Iowa,  533;  Harper  i;.  Lawler  v.  Earle,  5  Allen,  22.     Confideu- 

Hai-per,  10  Bush,  447;  Parker  •!;.  McQueen,  tial  communications  in  a  case  of  privilege 

8  B.  Mon.  16;  Hubbard  v.   Rutledge,  57  should  be  liberally  viewed  by  the  jury. 

Miss.    7.      The    communication    may   of  Stallings  v.  Newman,  26  Ala.  300. 
course  be  made  to  protect  the  speaker's 

189 


*  209  QTJALrFIED   PRIVILEGE. 

Horsford  was  about  to  deal  with  the  plaintiff,  when  he  met  the  defendant  who  said 
at  oiice,  without  his  opinion  being  asked  at  all,  "  If  you  have  anything  to  do  with 
Storey,  you  will  live  to  repent  it ;  he  is  a  most  unprincipled  man,"  &c.  Lord  Denman 
directed  a  verdict  for  the  plaintiff,  because  the  defendant  began  by  making  the  state- 
ment, without  waiting  to  be  asked.     Storey  v.  Challands,  8  C.  &  P.  234. 

Nash  selected  plaintiff  to  be  his  attornej'  in  an  action.  Defendant,  apparently  a 
total  stranger,  wrote  to  Nash  to  deprecate  his  so  employing  the  plaintiff.  This  was 
held  to  be  clearly  7iot  a  confidential  communication.  Damages,  Is.  Godson  v.  Home, 
1  B.  &  B.  7  ;  3  Moore,  223. 

At  the  hearing  of  a  County  Court  case,  Nettlefold  v.  Fulcher,  Fulcher's  solicitor 
commented  severely  on  the  conduct  of  the  plaintiff,  Nettlefold's  debt  collector.  Not 
content  with  that,  Fulcher's  solicitor  sent  a  full  report  of  the  case  to  the  Maryhhone 
Gazette,  including  his  remarks  on  the  plaintiff.  The  jury  found  that  this  report  was 
substantially  fair  and  accurate,  but  that  it  was  .sent  to  the  newspaper  "  with  a  certain 
amount  of  malice."  The  Court  upheld  this  finding,  laying  especial  stress  upon  the 
fact  that  the  defendant  was  a  volunteer,  and  not  an  ordinary  reporter  for  that  paper. 
Stevens  v.  Sampson,  5  Ex.  D.  53  ;  49  L.  J.  Q.  B.  120  ;  23  W.  R.  87  ;  41  L.  T.  782. 


(c)    Communications  made  in  discharge  of  a  duty  arising  from  a 
confideyitial  relationship  existing  hetiveen  the  ijarties. 

In  what  cases  then  will  a  defendant  be  privileged  in  going  of 
his  own  accord  to  the  person  concerned,  and  giving  him  informa- 
tion which  he  has  not  asked  for  ?  This  is  often  a  diJBficult 
*  210  question  to  answer.  But  in  one  *  class  of  cases  it  is  clear 
that  it  is  not  only  excusable,  but  that  it  is  imperative  on 
the  defendant  so  to  do ;  and  that  is  where  there  exists  between 
the  parties  such  a  confidential  relation  as  to  throw  on  the  de- 
fendant the  duty  of  protecting  the  interests  of  the  person  con- 
cerned. 

Thus  it  is  clearly  the  duty  of  my  steward,  bailiff,  foreman,  or 
housekeeper,  to  whom  I  have  entrusted  the  management  of  my 
lands,  business,  or  house,  to  come  and  tell  me  if  they  think  any- 
thing is  going  wrong,  and  not  to  wait  till  my  own  suspicions  are 
aroused,  and  I  myself  begin  asking  questions.  So  my  family 
solicitor  may  voluntarily  write  and  inform  me  of  anything  which 
he  thinks  it  is  to  my  advantage  to  know,  without  waiting  for  me 
to  come  down  to  his  office  and  inquire.  But  it  would  be  dan- 
gerous for  another  solicitor,  whom  I  had  never  employed,  to 
volunteer  the  same  information  ;  for  till  I  retain  him  in  the 
matter,  there  is  no  confidential  relation  existing  between  us.  So 
a  father,  guardian,  or  an  intimate  friend  may  warn  a  young- man 
against  associating  with  a  particular  individual  ;  or  may  warn  a 
190 


CONFIDEJSTTIAL   RELATIOX.  *  210 

lady  not  to  marry  a  particular  suitor ;  though  in  the  same  cir- 
cumstances it  might  be  considered  officious  and  meddlesome,  if  a 
mere  stranger  gave  such  a  warning,  (a)  So  if  the  defendant  is 
in  the  army  or  in  a  government  office,  it  would  be  his  duty  to 
inform  his  official  superiors  of  any  serious  misconduct  on  the  part 
of  his  subordinates  ;  for  the  defendant  is  in  some  degree  answer- 
able for  the  faults  of  those  immediately  under  his  control.  But 
it  does  not  follow  that,  if  A.  and  B.  are  officers  or  clerks  of  equal 
rank  and  standing,  it  is  the  duty  of  A.  to  tell  tales  of  B.,  except 
in  self-defence  ;  for  A.'s  superiors  expect  him  to  do  his  own  work 
merely  and  have  not  invested  him  with  any  authority  or  control 
over  B.^ 

A  confidential  relationship  then  clearly  exists  where  the 
*  parties  are  principal  and  agent,  solicitor  and  client,  *  211 
guardian  and  ward,  partners,  or  even  intimate  friends :  in 
short  wherever  any  trust  or  confidence  is  reposed  by  the  one  in 
the  other,  (h)  Or,  changing  the  point  of  view,  we  may  say  that 
it  will  be  the  duty  of  A.  to  volunteer  information  to  B.,  when- 
ever B.  could  justly  reproach  A.  for  his  silence  if  he  did  not 
volunteer  such  informaation. 

Merely  labelling  a  letter  "  Private  and  confidential,""  or  merely 
stating  ^'' I  speak  in  confidence,'"  will  not  make  a  communication 
confidential  in  the  legal  sense  of  that  term,  if  there  be  in  fact  no 
relationship  between  the  parties  which  the  law  deems  confiden- 
tial.2  (c) 

Illustratio7is. 

My  regular  solicitor  may  unasked  give  me  any  information  concerning  third  per- 
sons of  which  he  thinks  it  to  my  interest  tliat  1  should  be  informed,  even  althougli  he 
is  not  at  the  moment  conducting  any  legal  proceedings  for  me.  Davis  v.  Reeves,  5  Ir. 
C.  L.  R.  79. 

1  See  BeU  v.  Parke,  10  Ir.  C.  L.  R.  284  ;  11  Ir.  C.  L.  R.  413. 

2  Picton  V.  Jackman,  4  C.  &  P.  257. 

{a)  See  Joannes  v.   Bennett,   5  Allen,  of  the  same  church  merely  as  such.     York 

169  ;  Krebs  v.  Oliver,  12  Gray,  239.     So  a  ■;;.  Johnson,  116  Mass.  482. 
father  may  employ  a  person  to  make  in-  (c)  Nov  will  it  exempt  a  newspaper  edi- 

quirj^  concerning  the  character  and  stand-  tor  or  publisher  that  he  has  a  contract  of 

ing  of  his  daughter's  husband,  whom  she  indemnity  against  the  author  of  a  libellous 

had  left,  and  his  report  made  in  good  faith  article.     Atkins  v.   Johnson,    43   Vt.    78. 

and  reasonably  believed  true  will  be  priv-  Of  course  the  fact  that  the  "editor  or  pub- 

ileged.     Atwill  v.  Mackintosh,  120  Mass.  lisher "  disclaims    responsibility   for   the 

177.  articles  published  will  not  help  him. 

(&)  It  does  not  exist  between  members 

191 


*  211  QUALIFIED   PRiyiLEGE. 

A  solicitor  who  is  conducting  a  case  for  a  minor  maj'  inform  his  next  friend  of  the 
minor's  misconduct.  Wright  v.  Woodgate,  2  C.  M.  &  R.  573  ;  1  Tyr.  &  G.  12  ;  1 
Gale,  329. 

Rumors  being  in  circulation  prejudicial  to  the  character  of  the  plaintiff,  a  dissenting 
minister,  he  courted  inciuiry,  and  appointed  A.  to  sift  the  matter  thoroughly.  It  was 
agreed  that  the  defendant  should  represent  the  malcontent  portion  of  the  congregation, 
and  state  the  case  against  the  plaintiff  to  A.  A  confidential  relationship  being  thus 
established  between  the  defendant  and  A.,  all  that  took  place  between  them,  whether 
by  word  of  mouth  or  in  writing,  so  long  as  the  inquiry  lasted,  and  relative  thereto, 
was  held  to  be  privileged.  Hopwood  v.  Thorn,  8  C.  B.  293;  19  L.  J.  C.  P.  94  ;  14 
Jur.  87. 

A  report  by  the  Comptroller  of  the  Na\T  to  the  Board  of  Admiralty  upon  the  plans 
and  proposals  of  a  naval  architect  is  clearly  privileged.  Per  Grove,  J.,  in  Kenwood  v. 
Harrison,  L.  R.  7  C.  P.  606  ;  41  L.  J.  C.  P.  206  ;  20  W.  R.  1000  ;  26  L.  T.  938. 

A  timekeeper  employed  on  public  works,  on  behalf  of  a  public  department,  wrote  a 
letter  to  the  secretary  of  the  department,  imputing  fraud  to  the  contractor.  Black- 
burn, J.,  directed  the  jury  that  if  they  thought  the  letter  was  written  in  good  faith 
and  in  the  discharge  of  the  defendant's  duty  to  his  employers,  it  was  privileged, 
although  written  to  the  wrong  person.     Scarll  v.  Dixon,  4  F.  &  F.  250. 

*  212  *  A  relation  or  intimate  friend  may  confidentially  advise  a  lady  not  to 

marry  a  particular  suitor,  and  assign  reasons,  provided  he  really  believes  in 
the  truth  of  the  statements  he  makes.  Todd  v.  Hawkins,  2  M.  &  Rob.  20 ;  8  C. 
&  P.  888. 

The  defendant  and  Tinmouth  were  joint  owners  of  TJie  Robinson,  and  engaged  the 
plaintiff  as  master  ;  in  April,  1843,  defendant  purchased  Tinmouth's  share  ;  in  August, 
1843,  defendant  wrote  a  business  letter  to  Tinmouth,  claiming  a  return  of  £150,  and 
incidentally  libelled  the  plaintiff.  Held,  a  privileged  communication,  as  the  defendant 
and  Tinmouth  were  still  in  confidential  relationship.  Wilson  v.  Robinson,  7  Q.  B.  68  ; 
14  L.  J.  Q.  B.  196  ;  9  Jur.  726. 

The  defendant,  a  linendraper,  dismissed  his  apprentice  without  sufl[icient  legal 
excuse  :  he  wrote  a  letter  to  her  parents,  informing  them  that  the  girl  would  be  sent 
home,  and  giving  his  reasons  for  her  disnussal.  Cockburn,  C.J.,  held  this  letter 
privileged  ;  as  there  was  clearly  a  confidential  relationship  between  the  girl's  master 
and  her  parents.  James  v.  Jolly,  Bristol  Summer  Assizes,  1879,  ex  relatione  med.  See 
Fowler  and  wife  v.  Homer,  3  Camp.  294. 

The  officers  and  men  of  the  garrison  of  St.  Helena  gave  an  entertainment  at  the 
theatre,  at  which  considerable  noise  and  disturbance  took  place.  The  commanding 
officer  was  informed  that  this  was  caused  by  the  plaintiff,  who  was  said  to  have  been 
drunk.  The  plaintiff  was  an  assistant  master  in  the  Government  School.  The  com- 
manding officer  reported  the  circumstances  to  the  colonial  secretary  of  the  island,  and 
the  plaintiff  was  in  consequence  suspended  from  his  appointment.  Verdict  for  the 
plaintiff  disapproved  and  set  aside,  and  judgment  arrested.  Stace  v.  Griffith,  L.  R.  2 
P.  C.  420 ;  6  Moore,  P.  C.  C.  N.  S.  18  ;  20  L.  T.  197  ;  Sutton  v.  Plumridge,  16 
L.  T.  741. 

It  is  the  duty  of  an  under-master  in  a  College  School  to  inform  the  head-master 
that  reports  have  been  for  some  time  in  circulation  imputing  habits  of  drunkenness  to 
the  second-master.     Hume  v.  Marshall  (Cockburn,  C.J.),  Times  of  Nov.  26,  1877. 

But  where,  after  an  election,  the  agent  of  the  defeated  candidate  wrote  a  letter  to 
the  agent  of  the  successful  candidate,  asserting  that  the  plaintiff  and  another  (both 
members  of  the  successful  candidate's  committee)  had  bribed  a  particular  voter,  the 
letter  was  held  not  to  be  privileged,  as  there  was  no  confidential  relation  existing 

192 


INFORMATION   VOLUNTEERED.  *  212 

between  the  two  agents.    Dickeson  v.  Hilliard  and  another,  L.  R.  9  Exch.  79  ;  43  L.  J. 
Ex.  37  ;  22  W.  R.°372  ;  30  L.  T.  196. 

A  circular  letter  sent  by  the  secretary  to  the  members  of  a  society  for  the  protection 
of  trade  against  sharpers  and  swindlers,  is  not  a  privileged  communication.  Getting 
V.  Foss,  3  C.  &  P.  160.  See  Goldstein  v.  Foss,  2  C.  &  P.  252  ;  6  B.  &  C.  154  ;  4  Bing. 
489  ;  2  Y.  &  J.  146  ;  4  D.  &  R.  li>7  ;  1  M.  &  P.  402  ;  Humphreys  v.  Miller,  4  C.  & 
P.  7.  («) 

*  ((i)  Information  volunteered  ivhen  there  is  no  confidential    *  213 
relationship  existing  between  the  parties. 

Where  neither  the  defendant  himself,  nor  any  one  with  whom 
he  has  confidential  relations,  is  interested  in  the  subject  matter 
of  the  communication,  it  is  very  difficult  to  define  what  circum- 
stances will  be  sufficient  to  impose  on  him  the  duty  of  volunteer- 
ing information  to  the  prejudice  of  the  plaintiff.  There  is  no 
rule  of  law  on  the  point.  It  is  a  question  rather  of  moral  or 
social  ethics,  (h)  Unless  the  judge  is  clearly  of  opinion  that 
there  are  no  circumstances  to  raise  a  suggestion  of  privilege,  he 
will  in  every  such  case  leave  it  to  the  jury  to  determine  whether 
the  defendant  acted  bond  fide  in  the  execution  of  what  he  hon- 
estly believed  to  be  his  duty.  The  jury  must  not  ask  themselves 
merely  —  "Should  we  have  acted  as  the  defendant  has  done  in 
such  circumstances  ?  "  for  different  people  act  differently  in  simi- 
lar perplexities.  Moreover  the  matter  has  been  thoroughly  inves- 
tigated before  it  comes  before  the  jury,  and  what  to  the  defendant 
at  the  time  seemed  matter  of  serious  suspicion  has  all  been  ex- 
plained away  in  court.  The  jury  must  place  themselves  in  the 
position  of  the  defendant  at  the  time  these  suspicious  circum- 
stances were  brought  to  his  knowledge,  when  first  the  question 
arose  in  his  mind :  —  "  Ought  I  not  to  inform  A.  of  these  matters 
which  so  nearly  concern  him?"  It  may  well  be  that  another 
man  would  have  said,  "  It  is  no  concern  of  mine,*'  and  would  do 
nothing  (which  is  always  the  safer  course).  But  if  the  defendant 
honestly  felt  that  he  could  not  conscientiously  allow  A.  to  con- 
tinue in  secure  ignorance,  that  he  must  communicate  to  him  the 
rumor  he  had  heard,  and   if  he  had  reasonable  grounds  for  so 

{a)  Sunderlin  v.   Bradstreet,    46  N.  Y.  (b)  See  e.g.  Yan  Wyck  v.  Aspinwall,  17 

188  ;    Taylor    v.    Church,    4    Seld.    452 ;  N.  Y.   190 ;   Vanderzee  v.   McGregor,  12 

Beardsley  v.  Tappan,  5  Blatchf.  497.     But  Wend.  545  ;  Thorn  v.  Blanchard,  5  Johns. 

sr,cns  if  the  communication  is  made  upon  508  ;  Gray  v.  Pentland,  4  Serg.  &  R.  420. 
inquiry  to  a  person  interested.  lb.  ;  Orms- 
by  V.  Douglass,  37  N.  Y.  477. 

193 


*  213  QUALIFIED   PRIVILEGE. 

feeling,  that  is  sufficient.      It  is  not  necessary  that  the 

*  214    reports  which  reach  the  defendant  should  be  true,  or  *  that 

he  should  thoroughly  investigate  them.  Hearsay  is  suffi- 
cient reasonable  and  probable  cause  in  the  absence  of  malice ;  ^ 
unless  the  defendant  ought  for  any  reason  to  have  known  that 
his  informant  was  unreliable,  and  his  story  undeserving  of 
belief. 

The  defendant  is  entitled  to  judgment  if  the  jury  find  that  he 
reasonably  acted  under  an  honest  sense  of  duty,  desiring  to  serve 
the  person  most  concerned,  and  not  from  any  self-seeking  motive. 
But  there  must  be  some  circumstances  proved  before  them,  show- 
ing that  such  a  sense  of  duty  was  reasonably  possible.  It  is  not 
sufficient  for  the  defendant  merely  to  swear :  "  I  acted  under  a 
sense  of  duty."  The  defendant  is  not  to  be  punished  for  merely 
being  over-conscientious ;  but  on  the  other  hand  it  is  clear  law 
that  a  man  is  not  justified  in  repeating  information  he  has  re- 
ceived prejudicial  to  the  plaintiff,  merely  because  he  sincerely 

believes  it  to  be  true.^ 

« 
It  might  be  argued  that  iu  using  the  words  "  reasonably "  and  "  if  he 
had  reasonable  grounds  for  so  feeling,"  I  am  running  counter  to  Clark  v. 
Molyneux.^  But  I  think  that  decision  is  confined  to  cases  of  clear  privi- 
lege, where  the  only  question  is  as  to  evidence  of  express  malice.  Here 
we  are  dealing  with  the  previous  question,  privilege  or  no  privilege. 

The  law  on  the  point  cannot  be  better  expressed  than  in  the 
following  passage  :  —  "  Where  a  person  is  so  situated  that  it 
becomes'^ right  in  the  interests  of  society  that  he  should  tell  to 
a  third  person  certain  facts,  then  if  he  bond  fide  and  without 
malice  does  tell  them  it  is  a  privileged  communication."  ^ 
*  215  *  The  only  difficulty  is  in  any  given  case  to  determine 
whether  it  had  or  had  not  become  right  in  the  interests  of 
society  that  the  defendant  should  act  as  he  did. 

In  some  cases  the  judge  decides  this  point  without  the  help  of 
the  jury  by  ruling  that  no  prima  facie  case  of  privilege  has  at  all 

1  Maitland  v.  Bramwell,  2  F.  &  F.  623  ;  Coxhead  v.  Eicliards,  2  C.  B.  569  ;  15 
L.  J.  C.  P.  278  ;  Lister  v.  Perryman,  L.  R.  4  H.  L.  521 ;  39  L.  J.  Ex.  177  ;  23  L.  T. 
269. 

2  Bottorill  V.  Whytehead,  41  L.  T.  .'588. 

3  3  Q.  B.  D.  237  ;  47  L.  J.  Q.  B.  230  ;  26  W.  R.  104  ;  36  L.  T.  466  ;  37  L.  T.  694. 
*  Per  Blackburn.'j.,  ia  Davies  v.  Snead,  L.  R.  5  Q   B.  611 ;  39  L.  J.  Q.  B.  202; 

23  L.  T.  609. 

194 


IXFOEMATION  VOLUNTEERED.  *  215 

been  established.  And  undoubtedly  it  is  the  province  of  the 
judge  to  decide  whether  a  communication  is  privileged  or  not, 
when  the  facts  are  undisputed.  But  it  is  submitted  that  in  cases 
where  the  defendant  alleges  that  he  acted  under  an  honest, 
though  mistaken,  sense  of  duty,  the  judge  should  take  the  opinion 
of  the  jury  on  the  question  of  bona  fides,  unless  he  feels  certain 
that  no  other  reasonable  man,  except  the  defendant,  would  have 
felt  it  his  duty  to  act  as  the  defendant  did  in  similar  circum- 
stances, (a) 

In  Bennett  v.  Deacon,^  the  Court  of  Common  Pleas  were  equally  divided 
on  the  question  whether  the  judge  was  right  in  ruling  that  the  communi- 
cation could  not  be  privileged,  and  leaving  no  question  to  the  jury  as  to 
the  defendant's  bona  fides.  In  Coxhead  v.  Eichards,^  the  judge  had  left 
the  question  to  the  jury,  and  the  same  Court  was  equally  divided  as  to 
whether  he  was  right  in  so  doing.  In  each  case,  therefore,  the  rule  dropped, 
and  the  verdict  stood,  and,  as  in  the  former  case  the  verdict  had  necessarily 
been  for  the  plaintiflF,  owing  to  the  judge's  ruling,  and  in  the  latter  case  it 
was  for  the  defendant,  the  law  now  stands  in  tliis  somewhat  contradictory 
state  :  —  A  man  may  not  give  a  tradesman  a  bond  fide  caution  not  to  trust 
the  plaintiff,  though  the  facts  stated  be  within  defendant's  own  knowledge  ; 
he  must  wait  till  the  tradesman  applies  to  liim  for  his  advice ;  but,  on  the 
other  hand,  a  man  may  inform  a  shipowner  of  his  captain's  misconduct, 
though  he  does  not  know  it  of  his  own  knowledge  but  only  through 
others.  The  very  similar  case  of  Harwood  v.  Green  ^  *was  not  *  216 
cited  in  the  argument  of  Coxhead  v.  Richards ;  in  that  case  it  was 
decided  that  a  letter  written  to  Lloyd's  by  a  lieutenant  in  the  navy  as 
to  the  misconduct  of  the  captain  of  a  transport  ship  on  board  which  the 
lieutenant  had  been  superintendent  was  not  a  privileged  communication. 
So  too  it  is  difficult  to  distinguish  Brooks  v.  Blanshard*  from  Harris  v. 
Thompson.^  In  both  cases  the  communication  appears  to  have  been  vol- 
unteered. In  Harnett  v.  Vise  and  wife,''  the  judge  and  the  jury  took 
opposite  views  of  the  defendants'  conduct. 

If  such  differences  of  opinion  appear  in  the  reported  decisions  of  the 
Law  Courts,  how  much  greater  must  be  the  perplexity  of  a  defendant 
uneducated  in  casuistry  who  suddenly  finds  himself  called  upon  to  solve  a 
doubtful  problem  in  social  morality. 

1  2  C.  B.  628  ;  15  L.  J.  C.  P.  289. 

2  2  C.  B.  569  ;  15  L.  J.  C.  P.  278  ;  10  Jur.  984. 
8  3  C.  &  P.  141,  post,  p.  288. 

*  1  Cr.  &  Mces.  779  ;  3  Tyrw.  844.  5  13  C.  B.  333. 

6  5  Ex.  D.  307  ;  29  W.  R.  7. 

{n)  See  ante,  p.  185. 

195 


*  216  QUALIFIED   PRIYILEGE. 

It  appears  to  be  clear  that  if  the  defendant  reasonably  supposes 
that  human  life  would  be  seriously  imperilled  by  his  remaining 
silent  he  maj^  volunteer  information  to  those  thus  endangered,  or 
to  their  master,  though  he  be  not  himself  personall}^  concerned. ^ 
So  if  the  money  or  goods  of  the  person  to  whom  he  speaks  would 
be  in  great  and  obvious  danger  of  being  stolen  or  destroj-ed.  So 
too  it  appears  that  the  defendant  ma}',  without  being  applied  to 
for  the  information,  acquaint  a  master  with  the  misconduct  of 
his  servants,  if  instances  thereof  have  come  under  the  especial 
notice  of  the  defendant  and  have  been  concealed  from  the  mas- 
ter's eye.  But  in  most  other  cases  the  defendant  runs  a  great 
risk  in  volunteering  statements  which  afterwards  turn  out  to  l)e 
inaccurate,  unless  indeed  he  is  himself  personall}''  interested  in 
the  matter,  or  compelled  to  interfere  by  the  fiduciary  relationship 
in  wliich  he  stands  to  some  person  concerned.  Although  the 
defendant  may  feel  sure  that  if  he  were  in  his  neighbor's  place, 
he  should  be  most  grateful  for  the  information  conveyed, 

*  217    still  he  must  recollect  that  it  may  *  eventually  turn  out, 

that  in  endeavoring  to  avert  a  fancied  injury  to  that  neigh- 
bor, he  has  really  inflicted  an  undoubted  and  undeserved  injury 
on  the  plaintiff. 

Illustrations. 

A.  and  B.  are  tenants  to  the  same  landlord  with  similar  clauses  in  their  respective 
leases.  A.  has  reason  to  believe  that  B.  is  breaking  his  covenants,  committing  waste, 
violating  the  rotation  of  crops,  &c.  The  landlord  is  away  abroad.  It  is  submitted  on 
the  authority  of  Cockayne  v.  Hodgkisson,  5  C.  &  P.  543,  ante,  p.  208,  that  it  is  not 
the  duty  of  A.  to  write  and  inform  the  landlord  of  his  suspicions,  and  that  therefore 
such  a  letter  would  not  be  privileged  ;  unless  the  landlord  had  in  some  way  set  A.  in 
authority  over  B. 

A  housemaid  thinks  the  cook  is  robbiiig  their  master.  It  is  not  her  duty  to  speak 
at  once  on  bare  suspicion  merely  ;  but  as  soon  as  she  sees  something  which  reasonably 
appears  to  her  inconsistent  with  the  cook's  innocence,  she  will  be  privileged,  it  is  sub- 
mitted, in  giving  information  thereof  to  her  master. 

Communications  confidentially  made  to  a  master  as  to  the  conduct  of  his  servants, 
by  one  who  has  had  an  opportunity  of  noticing  certain  malpractices  on  their  part,  are 
privileged.  Cleaver  v.  Sairaude,  1  Camp.  268  ;  Kine  v.  Sewell,  3  M.  &  W.  297; 
Amann  v.  Damm,  8  C.  B.  N.  S.  597;  29  L.  J.  C.  P.  313;  7  Jur.  K.  S.  47;  8  W.  E. 
470. 

The  occupier  of  a  house  may  complain  to  the  landlord  of  the  workmen  he  has  sent 
to  repair  the  house.     Toogood  v.  Spyring,  1  C.  M.  &  R.  181;  4  Tyrw.  582. 

If  a  report  be  current  in  a  parish  as  to  the  disgraceful  conduct  of  the  incumbent, 
bringing  scandal  on  the  church,  a  good  churchman  may  inform  the  Bishop  of  the  die- 

1  See  per  Cresswell,  J.,  2  C.  B.  605. 

196 


DUTY   TO    SPEAK.    '  *  217 

cese  thereof,  although  he  does  not  reside  in  the  distiict  and  is  not  personally  interested. 
James  v.  Boston,  2  C.  &  K.  4. 

A  letter  written  by  a  private  individual  to  the  chief  secretary  of  the  Post-Master 
General  complaining  of  the  misconduct  of  an  official  under  the  authority  of  the  Post- 
Master  General,  is  privileged,  if  made  bond  fide  and  without  malice,  even  though  some 
of  the  charges  made  in  the  letter  may  not  be  true,  and  though  the  defendant  stood  in 
no  relation,  past  or  present,  either  to  the  plaintiff  or  to  the  Post  Office  authorities. 
Blake  v.  Pilfold,  1  Moo.  &  Rob.  198;  Woodward  v.  Lander,  6  C.  &  P.  548. 

The  first  mate  of  a  merchant  ship  wrote  a  letter  to  the  •  defendant,  an  old  and  in- 
timate friend,  stating  that  he  was  placed  in  a  very  awkward  position  owing  to 
the  drunken  habits,  &c.,  of  the  captain,  and  saying  : —  "  How  shall  *  I  act  ?  *  218 
It  is  my  duty  to  write  to  Mr.  Ward  (the  owner  of  the  ship),  but  my  doing  so 
would  ruin  "  the  captain  and  his  wife  and  family.  The  defendant,  after  much  delibera- 
tion and  consultation  with  other  nautical  friends,  thought  it  his  duty  to  show  the  letter 
to  Ward,  who  thereupon  dismissed  the  captain.  The  defendant  knew  nothing  of  the 
matter  excejit  from  the  mate's  letter.  The  Court  of  C.  P.  was  equally  divided  on  the 
question  whether  so  showing  the  letter  was  privileged  ;  and  therefore  the  verdict  for 
the  defendant  stood.  Coxhead  u  Pdchards,  2  C.  B.  569;  15  L.  J.  C.  P.  278;  10  Jur. 
984.  Approved  by  Willes,  J.,  in  Amann  v.  Damm,  8  C.  B.  N.  S.  597;  29  L.  J.  C.  P. 
313.     And  see  Harwood  v.  Green,  3  C.  &  P.  141;  post,  p.  288. 

Defendant  met  Clark  in  the  road,  and  asked  him  if  he  had  sold  his  timber  yet. 
Clark  replied  that  Bennett  (plaintiff)  was  going  to  have  it.  Defendant  asked  if  he 
was  going  to  pay  ready-money  for  it,  and  being  answered  in  the  negative,  said,  "  Then 
you  '11  lose  your  timber;  for  Bennett  owes  me  about  £25,  and  I  am  going  to  arrest  him 
next  week  for  my  money,  and  your  timber  will  help  to  pay  my  debt."  Clark  conse- 
quently declined  to  sell  the  timber  to  the  plaintiff.  Plaintiff  really  did  owe  defendant 
about  £23.  Coltman,  J.,  directed  the  jury  that  the  caution  was  altogether  unprivi- 
leged b;"cause  volunteered :  and  they  therefore  found  a  verdict  for  the  plaintiff,  damages 
40s.  The  Court  of  C.  P.  were  equally  divided  on  the  question  whether  the  judge  was 
right  in  his  direction,  and  therefore  the  verdict  for  the  plaintifi'  stood.  Bennett  v. 
Deacon,  2  C.  B.  628;  15  L.  J.  C.  P.  289.     See  King  v.  Watts,  8  C.  &  P.  615. 

A.  and  B.  were  shareholders  in  the  same  railway  company.  B.  was  also  a  River 
Commissioner.  The  plaintiff  had  been  engineer  to  the  railway  company  and  was 
seeking  to  be  elected  engineer  to  the  River  Commissioners.  Shortly  before  the  election, 
A.  voluntarily  wrote  to  B.  that  the  plaintiff's  mismanagement  or  ignorance  had  cost 
the  railway  company  several  thousand  pounds.  The  plaintiff  lost  the  appointment  in 
consequence.  Held  not  a  privileged  communication.  Brooks  v.  Blanshard,  1  Cr.  <& 
Mees.  779;  3  Tjtw.  844. 

The  defendant  was  a  director  of  two  companies  ;  of  one  of  which  the  plaintiff  was 
secretary,  of  the  other  auditor.  The  plaintiff  was  dismissed  from  his  post  as  secretary 
of  the  first  company  for  alleged  misconduct.  Thereupon  the  defendant,  at  the  next 
meeting  of  the  board  of  the  second  company,  informed  his  co-directors  of  this  fact,  and 
proposed  that  he  should  also  be  dismissed  from  his  post  of  auditor  of  the  second  com- 
pany.    Held  a  privileged  communication.     Harris  v.  Thompson,  13  C.  B.  333. 

Dawes  told  the  defendant  that  he  intended  to  employ  the  jilaiutiff  as  surgeon  and 
accoucheur  at  his  wife's  approaching  confinement ;  the  defendant  thereupon  advised  hini 
not  to  do  so,  on  account  of  the  plaintiH"s  alleged  immorality.  JIartin,  B.,  thought 
this  was  a  privileged  communication,  though  it  was  volunteered.  Dixon  v.  Smith,  29 
L.  J.  Ex.  125;  5  H.  &  N.  450. 

*The  defendant,  a  parishioner,  mentioned  to  her  rector  a  report,  widely  cur-  *  219 
rent  in  the  parish,  that  the  rector  and  his  solicitor  were  grossly  mismanaging 

197 


*  219  QUALIFIED   PRIVILEGE. 

a  trust  estate,  and  defrauding  the  widow  and  orphans,  &c.  The  solicitor  brought  an 
action  for  the  slander.  The  jury  found  that  she  did  so  in  the  honest  belief  that  it  was 
a  benefit  to  the  rector  to  inform  him  of  the  report  in  order  that  he  might  clear  his 
character.  The  Court  held  that  the  statement  was  clearly  privileged  so  far  as  the  rector 
was  concerned,  and  that  as  the  statement  was  not  divisible  it  must  also  be  privileged 
with  regard  to  the  plaintiff.  Davies  v.  Snead,  L.  R.  5  Q.  B.  611;  39  L.  J.  Q.  B.  202; 
23  L.  T.  609. 

Information  given  to  a  vicar  absent  on  the  continent  as  to  rumors  affecting  the 
moral  character  of  the  curate  he  has  left  in  charge  is  privileged:  so  is  similar  informa- 
tion given  verbally  to  the  absent  vicar's  solicitor,  with  a  view  to  his  informing  the 
vicar,  should  he  think  it  right  to  do  so:  so  is  similar  information  given  to  a  neighbor- 
ing vicar  who  has  asked  the  curate  in  charge  to  preach  for  him.  Clark  v.  Molyneux, 
3  Q.  B.  D.  237;  47  L.  J.  Q.  B.  230;  26  W.  R.  104;  36  L.  T.  466;  37  L.  T.  694;  14 
Cox,  C.  C.  10.  (a) 

The  plaintiff,  an  architect,  had  been  employed  by  a  certain  committee  to  superintend 
and  carry  out  the  restoration  of  Skirlaugh  Church;  thereupon  the  defendant,  who  was 
a  clergyman  residing  in  the  county,  but  who  had  no  manner  of  interest  in  the  question 
of  the  employment  of  the  plaintiff  to  execute  the  work,  wrote  a  letter  to  a  member  of 
the  committee  saying,  "I  see  that  the  restoration  of  Skirlaugh  Church  has  fallen  into 
the  hands  of  an  architect  who  is  a  Wesleyan  and  can  have  no  experience  in  church 
work.  Can  you  not  do  something  to  avert  the  irreparable  loss  which  must  be  caused 
if  any  of  the  masonry  of  this  ancient  gem  of  art  be  ignorantly  tampered  with  ?  "  The 
letter  was  clearly  a  libel  on  the  plaintiff  in  the  way  of  his  profession  or  calling.  Bram- 
well,  L.  J.,  thought  it  was  privileged,  because  the  restoration  was  a  matter  of  public 
interest,  and  one  in  which  a  neighboring  clergj^man  would  be  especially  interested;  but 
a  special  jury  found  that  there  was  evidence  of  malice  in  the  unfair  expressions  em- 
ployed and  gave  the  plaintiffs  £50  damages.  But  Kelly,  C.B.,  on  a  motion  for  a  new 
trial,  declared  that  he  was  "at  a  loss  to  see  what  privilege  the  defendant  possessed, 
under  the  circumstances  of  the  case,  to  interfere  between  the  committee  and  the  plain- 
tiff in  respect  of  the  contract  between  them;  the  defendant  being  neither  the  patron, 
nor  the  minister  of  the  church,  nor  a  member  of  the  committee  appointed  to  effect  its 
restoration,  nor  even  a  parishioner." 

[It  did  not  appear  that  the  defendant  was  even  a  subscriber  to  the  restoration  fund.] 
Botterill  and  another  v.  Whytehead,  41  L.  T.  588, 

*  220    *  (iii.)    Information  given  to   any  public  officer    imputing 

crime  or  misconduct  to  others. 

It  is  a  clut}^  which  every  one  owes  to  society  and  to  the  State 
to  assist  in  the  investigation  of  any  alleged  misconduct,  and  to 
promote  the  detection  of  any  crime.  (^)     And  this  duty  does  not 

(ft)  How  far  communications  concern-  Denio,  488  ;    Mayo  v.   Sample,    13   Iowa, 

ing  fellow  clergymen  are  privileged,   see  306  ;  Eobinett  v.  Euby,  13  J\Id.  95  ;  Briggs 

also   Shurtleff  t).    Stevens,    51    Vt.    501;  v.  Byrd,  12  Ired.  377.     See  also  Smith  i;. 

Whitely  v.  Adams,  15  C.  B.  N.  S.  417.  Higgins,  16  Gray,  251,  where  in  a  town 

(6)  See  Eames  v.  Whittaker,  123  Mass.  meeting  the  town  assessors  were  charged 

342;  Lawler  v.   Earle,  5  Allen,  22;  Brow  with  having  perjured  themselves  in  a  suit 

V.   Hathaway,   13  Allen,    239  ;    Smith   v.  against   them   in   their    official    capacity. 

Kerr,  Edm.  Sel.  Cas.   190;  Allen  v.  Cro-  The  charge  was  held  privileged, 
foot,    2   Wend.  515  ;   Thorn  v.   Moser,   1 
198 


CHARGE   OF   FELONY.  *  220 

arise  merely  when  confidential  inquiries  are  made.  If  facts  come 
under  my  knowledge  which  lead  me  reasonably  to  conclude  that 
a  crime  has  been,  or  is  about  to  be,  committed,  it  is  my  duty  at 
once  to  give  information  to  the  police.  "  For  the  sake  of  public 
justice,  charges  and  communications  which  would  otherwise  be 
slanderous,  are  protected  if  bond  fide  made  in  the  prosecution  of 
an  inquiry  into  a  suspected  crime."  ^  But  such  charges  must  be 
made  in  the  honest  desire  to  promote  the  ends  of  justice,  and  not 
with  any  spiteful  or  malicious  feeling  against  the  person  accused, 
nor  with  the  purpose  of  obtaining  an}^  indirect  advantage  to  the 
accuser.  Nor  should  serious  accusations  be  made  recklessly  or 
wantonly  ;  they  must  always  be  warranted  by  some  circumstances 
reasonably  arousing  suspicion.  And  they  should  not  be  made 
before  more  persons,  nor  in  stronger  language,  than  necessary. 

Illustrations. 

Mensel  sent  his  servant,  the  plaintiff,  to  the  defendant's  shop  on  business  ;  while 
there,  the  plaintiff  liad  occasion  to  go  into  an  inner  room.  Shortly  after  he  left,  a  box 
was  missed  from  that  inner  room.  No  no  else  had  been  in  the  room  except  the  plain- 
tiff. The  defendant  thereupon  went  round  to  Mr.  Mensel's,  and  calling  him  aside  into 
a  private  room,  told  him  what  had  happened,  adding  that  the  plaintiff  must  have  taken 
the  box.  Later  on,  the  plaintiff  came  to  the  defendant's  house,  and  the  defend^t  re- 
peated the  accusation  to  him ;  but,  an  English  girl  being  present,  defendant  was  care- 
ful to  speak  in  German.  Both  communications  were  held  privileged,  if  made  without 
actual  malice  and  in  the  bond  fide  belief  of  their  truth.  Amann  v.  Damni,  8  C.  B. 
N.  S.  597  ;  29  L.  J.  C.  P.  313  ;  7  Jur.  N.  S.  47;  8  W.  R.  470. 

*  Defendant  accused  the  plaintiff,  in  the  presence  of  a  third  person,  of  *  221 
stealing  his  wife's  brooch  ;  plaintiff  wished  to  be  searched  ;  defendant  repeated 
the  accusation  to  two  women,  who  searched  the  plaintiff  and  found  notliing.  Sub- 
sequently it  was  discovered  that  defendant's  wife  had  left  the  brooch  at  a  friend's  house. 
Held,  that  the  mere  publication  to  the  two  women  did  not  destroy  the  privilege  attach- 
ing to  charges,  if  made  bond  fide;  but  that  all  the  circumstances  should  have  been  left 
to  the  jury  who  should  determine  whether  or  no  the  charge  was  made  recklessly  and 
unwarrantably,  and  repeated  before  more  persons  than  necessary.  Padmore  v.  Lawrence, 
11  A.  &  E.  380  ;  4  Jur.  458  ;  3  P.  &  D.  209  ;  Fowler  and  Wife' v.  Homer,  3  Camp.  294. 

Plaintiff  assaulted  the  defendant  on  the  highway  ;  defendant,  meeting  a  constable, 
requested  him  to  take  charge  of  the  plaintiff,  and  the  constable  refusing  to  arrest  the 
plaintiff  unless  the  defendant  would  charge  him  with  felony,  the  defendant  did  so ; 
held,  on  demurrer  to  the  defendant's  plea  setting  up  these  circumstances,  that  they  did 
not  render  the  charge  of  felony  a  privileged  publication.  Smith  v.  Hodgeskins,  Cro. 
Car.  276. 

Plaintiff  was  defendant's  shopman  in  Plymouth  till  Nov.  5th,  1834,  when  he  left 
and  went  to  London,  receiving  from  the  plaintiff  a  good  character  for  .steadiness,  hon- 

1  Per  Coleridge,  J.,  in  Padmore  v.  LawTence,  11  A.  &  E.  382.  See  Johnson  v.  Evans, 
3  Esp.  32. 

199 


*  221  QUALIFIED   PEIVILEGE. 

esty  aud  industiy.  Early  in  December  defendant  found  one  of  his  female  servants  in 
possession  of  some  of  his  goods.  When  charged  with  stealing  them,  she  said  that  the 
plaintiff  gave  them  to  her.  Thereupon  the  defendant,  though  he  knew  the  girl  was  of 
bad  character,  went  to  the  plaintiff's  relations  in  Plymouth  and  charged  him  with 
felony,  and  eventually  induced  them  to  give  him  fifty  pomids  to  say  no  more  about  the 
matter.  Held  that  the  charge  of  felony  was  not  made  bond  fide,  with  a  just  intention 
to  promote  investigation  or  prosecution,  but  with  a  view  to  a  comiiromise,  and  was 
altoo-ether  unprivileged  ;  and  that  no  question  as  to  malice  in  fact  should  have  been 
left  to  the  jury.     Hooper  v.  Truscott,  2  Bing.  X.  C.  457  ;  2  Scott,  672. 

So,  too,  it  is  the  duty  of  all  who  witness  any  misconduct  on  the 
part  of  a  magistrate  or  any  public  ofBcer  to  bring  such  misconduct 
to  the  notice  of  those  whose  duty  it  is  to  inquire  into  and  pun- 
ish it ;  and,  tlierefore,  all  petitions  and  memorials  complaining  of 
such  misconduct,  if  prepared  bonl  fidi  and  forwarded  to  the  proper 
authorities,  are  privileged.  And  it  is  not  necessary  that  the  in- 
formant or  memorialist  should  be  in  any  way  personally  aggrieved 
or  injured :  for  all  persons  have  an  interest  in  the  pure 

*  222    administration  of  justice  and  the  efficiency  of  *  our  public 

offices  in  all  departments  of  the  State.  So  with  ecclesiastical 
matters  ;  all  good  churchmen  are  concerned  to  prevent  any  scandal 
attaching  to  the  Church.  If,  however,  the  informant  be  the  per- 
son immediately  affected  by  the  misconduct  complained  of,  he  can 
claim  privilege  also  on  the  ground  that  he  is  acting  in  self-defence.^ 
Every  communication  is  privileged  which  i&md.(\.e'-' bond  fide  with 
a  view  to  obtain  redress  for  some  injury  received,  or  to  prevent  or 
punish  some  public  abuse.  .  .  .  This  privilege,  however,  must 
not  be  abused ;  for  if  such  a  communication  be  made  maliciously 
and  without  probable  cause,  the  pretence  under  which  it  is  made, 
instead  of  furnishing  a  defence,  will  aggravate  the  case  of  the 
defendant."  ^  And  a  defendant  will  be  taken  to  have  acted  ma- 
liciously, if  he  eagerly  seizes  on  some  slight  and  frivolous  matter, 
and  without  any  inquiry  into  the  merits,  without  even  satisfying 
himself  that  the  account  of  the  matter  that  has  reached  him  is 
correct,  hastily  concludes  that  a  great  public  scandal  has  been 
brought  to  light  which  calls  for  the  immediate  intervention  of  the 
Crown. 

I  llustrations. 

A  memorial  to  the  Home  Secretary  or  to  the  Lord  Chancellor,  comijlaining  of  miscon- 
duct  on  the  part  of  a  county  magistrate  and  praymg  for  his  removal  from  the  commission 

1  See  the  next  class  of  cases,  p.  225. 

2  Per  Best,  J.,  in  Fairman  v.  Ives,  5  B.  &  Aid.  647,  8. 

200 


CHARGES    AGAINST   PUBLIC   OFFICIALS.  *  222 

of  the  peace,  is  privilec,'e(l.     Harrison  v.  Bush,  5  E.  &  B.  344  ;  25  L.  J.  Q.  B.  25,  99  ; 
1  Jur.  N.  S.  846  ;  2  .Tur.  N.  S.  90. 

So  is  a  petition  to  the  House  of  Commons  charging  the  plaintiff  with  oppression  and 
extortion  in  his  office  of  Vicar-General  to  the  Bishop  of  Lincoln,  although  the  petition 
was  printed,  and  copies  distributed  amongst  the  members.  Lake  v.  King,  1  Lev.  240  ; 
1  Saund.  131  ;  Sid.  414  ;  1  Mod.  58. 

The  defendant  deemed  it  his  duty  as  a  cliurchman  to  write  to  the  Bishop  of  London 
informing  him  that  a  report  was  current  in  the  parish  of  Bethnal  Green  that  a  stand-up 
fight  had  occurred  in  the  schoolroom  of  St.  James  the  Great  between  the 
plaintiff,  the  incumbent,  and  the  *  schoolmaster,  during  school  hours.  The  223 
letter  was  held  privileged  under  the  Church  Discipline  Act,  3  &  4  Vict.  c. 
86,  s.  3  ;  although  the  defendant  did  not  live  in  the  district  of  which  the  plaintiflF  was 
incumbent  but  in  an  adjoining  district  of  the  same  parish.    James  v.  Boston,  2  C.&  K.  4. 

A  letter  written  to  the  Postmaster-General,  or  to  the  Secretary  to  the  General  Post- 
OfBce,  complaining  of  misconduct  in  a  postmaster,  is  not  a  libel,  if  it  was  written  as  a 
bcnid  fide  complaint,  to  obtain  redress  for  a  grievance  that  the  party  really  believed  he 
had  suffered  ;  and  particular  expressions  are  not  to  be  too  strictly  scrutinized,  if  the 
intention  of  the  defendant  was  good.  Woodward  v.  Lander,  6  C.  &  P.  548  ;  Blake  v. 
Pilfold,  1  Moo.  &  Rob.  198. 

But  in  seeking  redress,  the  defendant  must  be  careful  to  apply 
to  some  person  who  has  jurisdiction  to  entertain  the  comphiint,  or 
power  to  redress  the  grievance.  Statements  made  to  some  stran- 
ger who  has  nothing  to  do  with  the  matter  cannot  be  privileged. 
But  still  if  the  defendant  applies  to  the  wrong  person,  through 
some  natural  and  honest  mistake,  as  to  the  respective  functions  of 
various  state  officials,  such  slight  and  unintentional  error  will  not 
take  the  case  out  of  the  privilege.^  If  however  he  recklessly 
makes  statements  to  some  one  whom  he  ought  to  have  known  was 
altogether  unconcerned  with  the  matter,  the  privilege  is  lost. 
The  person  whose  aid  is  invoked  must  have  some  jurisdiction, 
direct  or  indirect,  to  redress  the  grievance  or  some  duty  or  interest 
in  connection  therewith. 

So  too  where  the  informant  is  himself  the  person  aggrieved,  he 
should  be  very  careful  not  to  be  led  away  by  his  just  indigna- 
tion into  misstating  facts,  or  employing  language  which  is  clearly 
too  violent  for  the  occasion. 

Illustrations. 

"  A  petition  to  the  king  upon  matters  in  which  the  Crown  cannot  directly  interfere," 
is  privileged.     Per  Best,  J.,  5  B.  &  Aid.  643. 

*  An  elector  of  Frome  petitioned  the   Home  Secretary,  stating  that  the     *  224: 
plaintiff,  a  magistrate  of  the  borough,  had  made  speeches  inciting  to  a  breach 
of  the  peace,  and  praying  an  inr^uiry  and  that  the  Home  Secretary  should  advise  Her 

I  Scaril  V.  Dixon,  4  F.  &  F.  250. 

201 


*  224  QUALIFIED   PRIVILEGE. 

Majesty  to  remove  the  plaintiff  from  the  commission  of  the  peace,  —  such  petition  was 
held  to  be  privileged,  although  it  should  more  properly  have  been  addressed  to  the 
Lord  Chancellor.  Harrison  v.  Bush,  5  E.  &  B.  344  ;  25  L.  J.  Q.  B.  25,  99  ;  1  Jur.  N. 
S.  846  ;  2  Jur.  N.  S.  90  ;  Scarll  v.  Dixon,  4  F.  &  F.  250,  ante,  p.  211. 

The  plaintiff  was  about  to  be  sworn  in  as  a  paid  constable,  by  the  justices,  when 
the  defendant,  a  parishioner,  made  a  statement  against  the  plaintiff's  character  in  the 
hearing  of  several  bystanders.  Held  that  even  if  such  statement  ought  rather  to  have 
been  made  to  the  vestry,  who  drew  up  the  list  of  constables  whom  the  justices  were  to 
swear  in,  still  it  was  privileged,  if  made  bond  fide  in  furtherance  of  the  ends  of  justice. 
Kershaw  v.  Bailey,  1  Ex.  743  ;  17  L.  J.  Ex.  129. 

A  letter^to  the  Secretary  at  War,  with  the  intent  to  prevail  on  him  to  exert  his 
authority  to  compel  the  plaintiff  (an  officer  in  the  army)  to  pay  a  debt  due  from  him  to 
defendant,  was  held  privileged,  although  the  Secretary  at  War  had  no  direct  power  or 
authoiity  to  order  the  plaintiff  to  pay  his  debt.  "  It  was  an  application,"  says  Best, 
J.,  "for  the  redress  of  a  grievance,  made  to  one  of  the  king's  ministers,  who,  as  the 
defendant  honestly  thought,  had  authority  to  afford  him  redress."  Fau-mau  v.  Ives,  5 
B.  &  Aid.  642  ;  1  Chit.  85  ;  1  D.  &  R.  252. 

But  where  the  defendant  wrote  a  letter  to  the  Home  Secretary  complaining  of  the 
conduct  of  the  plaintiff,  a  solicitor,  as  clerk  to  the  borough  magistrates,  this  was  held 
not  to  be  privileged,  because  Sir  James  Graham  had  no  power  or  jurisdiction  whatever 
over  the  plaintiff.  There  was  moreover  evidence  of  malice.  Blagg  v.  Sturt,  10  Q.  B. 
899  ;  16  L.  J.  Q.  B.  39  ;  8  L.  T.  (Old  S.)  135  ;  ll' Jur.  101. 

The  plaintiff  was  a  teacher  in  a  district  school ;  the  inhabitants  of  the  district  pre- 
pared a  memorial  charging  the  plaintiff  with  drunkenness  and  immorality,  which  they 
sent  to  the  local  superintendent  of  Schools.  It  ought  strictly  to  have  been  sent  to  the 
trustees  of  that  particular  school  in  the  first  instance,  and  such  trustees  would  then,  if 
they  thought  fit,  in  due  course  forward  it  to  the  local  superintendent  for  him  to  take 
action  upon  it.  Held  that  the  publication  was  still  jrrimd  facie  privileged,  although,  by 
a  mistake  easily  made,  it  had  been  sent  to  the  wrong  quarter  in  the  first  instance. 
Mclntyi-e  v.  McBean,  13  Up.  Canada  Q.  B.  Rep.  534. 


*225   *(B.)    COIMMTINICATIONS   MADE  DT   SELF-DEFENCE. 

(iy.)  Statements  necessary  to  protect  defendant'' s  private  interests. 

The  duty  which  compels  the  defendant  to  make  the  commu- 
nication may  in  special  circumstances  be  a  duty  which  he  owes 
to  himself,  or  which  a  due  regard  to  his  own  interest  renders  ne- 
cessary. But  in  such  cases  it  must  clearly  appear  not  only  that 
some  such  communication  was  necessary,  but  also  that  the^  de- 
fendant was  compelled  to  employ  the  libellous  words  complained 
of.  If  he  could  have  done  all  that  his  duty  or  interest  demanded 
without  libelling  or  slandering  the  plaintijff.  then  the  words  were 
not  uttered  in  the  due  performance  of  any  duty  and  are  therefore 
not  privileged.  Thus,  it  is  very  seldom  necessary  in  self-defence 
to  impute  evil  motives  to  others.  Above  all,  the  defendant 
202 


STATEJIENTS   IN    SELF-DEFENCE.  *  225 

should  never  charge  his  adversary  with  fraud,  unless  prepared 
with  the  most  conclusive  evidence ;  for  once  a  charge  of  fraud  is 
made,  it  must  be  proved  to  the  letter.^ 

So  too  in  cases  where  some  such  communication  is  necessary 
and  proper  in  the  protection  of  the  defendant's  interests,  the 
privilege  may  be  lost  if  the  extent  of  its  publication  be  excessive. 
I  am  not  entitled  to  write  to  the  Times  because  some  one  has 
cast  a  slur  on  me  at  a  private  meeting  of  the  board  of  guardians  ; 
in  fact  by  so  doing  I  take  the  surest  method  of  disseminating  the 
charge  against  myself.  So  with  an  advertisement  inserted  in  a 
newspaper,  defamatory  of  the  plaintiff ;  if  such  advertisement  be 
necessary  to  protect  the  defendant's  interest,  or  if  advertising  was 
the  only  way  of  effecting  the  defendant's  object,  and  such  object 
is  a  lawful  one,  then  the  circumstances  excuse  the  extensive 
*  publication.  But  if  it  was  not  necessary  to  advertise  at  *  226 
all,  or  if  the  defendant's  object  could  have  been  equally 
well  effected  by  an  advertisement  which  did  not  contain  the 
words  defamatory  of  the  plaintiff,  then  the  extent  given  to  the 
announcement  is  evidence  of  malice  to  go  to  the  jury. 


2 


Illustrations. 

The  plaintiff,  a  trader,  employed  an  auctioneer  to  sell  off  his  goods,  and  otherwise 
conducted  himself  in  such  a  way  that  his  creditors  reasonably  concluded  that  he  had 
committed  an  act  of  bankruptcy.  One  of  them,  the  defendant,  thereupon  sent  the 
auctioneer  a  notice  not  to  pay  over  the  proceeds  of  the  sale  to  the  plaintiff,  "  he  hav- 
ing committed  an  act  of  bankruptcy."  Held  by  the  majority  of  the  Court  of  C.  P.  that 
this  notice  was  privileged,,  as  being  made  in  the  honest  defence  of  defendant's  own  in- 
terests.    Blackham  v.  Pugh,  2  C.  B.  611  ;  15  L.  J.  C.  P.  290. 

So  where  an  agent  in  temperate  language  claims  a  right  for  his  principal,  or  a  soli- 
citor for  his  client.  Hargrave  v.  Le  Breton,  Burr.  2422  ;  Steward  v.  Young,  L.  R.  5 
C.  P.  122  ;  39  L.  J.  C.  P.  85  ;  18  W.  R.  492  ;  22  L.  T.  168. 

The  defendant  had  dismissed  the  plaintiff  from  his  service  on  suspicion  of  theft, 
and,  upon  the  plaintiff  coming  to  his  counting-house  for  his  wages,  called  in  two  other 
of  his  servants,  and  addressing  them  in  the  presence  of  the  plaintiff,  said —  "  I  have 
dismissed  that  man  for  robbing  me  :  do  not  speak  to  him  any  more,  in  public  or  in 
private,  or  I  shall  think  you  as  bad  as  him." — Held  a  privileged  communicarion,  on 
the  ground  that  it  was  the  duty,  and  also  the  interest,  of  the  defendant  to  prevent  his 
servants  from  associating  with  such  a  person.     Somerville  v.  Hawkins,  10  C.  B.  583  ; 

1  Prior  &  another  v.  Wilson,  1  C.  B.  N.  S.  95. 

2  Brown  v.  Croome,  2  Stark.  297  ;  and  Lay  v.  Lawson,  4  A.  &  E.  795,  overruling, 
or  at  least  explaining  Delany  v.  Jones,  4  Esp.  191.  And  see  Stockley  v.  Clement,  4 
Bing.  162  ;  12  Moore,  376,  and  R.  v.  Enes  (1732),  Andr.  229  ;  Bacon's  Abr.  Libel  A. 
(2),  p.  452. 

203 


*  226  QUALIFIED   PRIVILEGE. 

20  L.  J.  C.  P.  131 ;  16  L.  T.  (Old  S. )  283  ;  5  Jur.  450.     And  see  Manlsy  v.  Witt,  East- 
mead  V.  Witt,  18  C.  B.  544 ;  25  L.  J.  C.  P.  294  ;  2  Jur.  N.  S.  1004. 

The  occupier  of  a  Louse  may  complain  to  the  landlord  or  his  agent  of  the  workmen 
he  has  sent  to  repair  the  house.     Toogood  v.  Si)yring,  1  C.  M,  &  R.  181  ;  4  Tyrw.  582  ; 
Kine  v.  Sewell,  3  M.  &  W.  297. 

*  227  ■'^  customer  may  call  and  complain  to  a  tradesman  of  the  goods  he  *  sup- 

plies and  the  manner  in  which  he  conducts  his  business  :  but  he  should  be 
careful  to  make  the  complaint  in  the  hearing  of  as  few  persons  as  possible,  and  in 
moderate  language.  Oddy  v.  Ld.  Geo.  Paulett,  4  F.  &  F.  1009  ;  Crisp  v.  Gill,  29  L.  T. 
(Old  S.)  82. 

Defendant  claimed  rent  of  plaintiff  ;  plaintift's  agent  told  defendant  that  plaintiff  de- 
nied his  liability  ;  defendant  thereupon  wrote  to  the  agent,  alleging  facts  in  support  of  his 
claim,  and  adding,  "  this  attempt  to  defraud  me  of  the  produce  of  the  land  is  as  mean 
as  it  is  dishonest."  Jleld  that  the  publication,  in  these  terms,  was  not  privileged,  for 
one  can  claim  a  debt  without  imputing  fraud,  and  that  the  judge  was  justified  in  direct- 
in-^  the  jury  that  it  was  a  libel.     Tuson  v.  Evans,  12  A.  &  E.  733. 

Lord  Denman  in  delivering  the  judgment  of  the  Court,  said,  "Some  remark  from 
the  defendant  on  the  refusal  to  pay  the  rent  was  perfectly  justifiable,  because  his  entire 
silence  miCTht  have  been  construed  into  an  acquiescence  in  that  refusal,  and  so  might 
have  prejudiced  his  case  upon  any  future  claim  ;  and  the  defendant  would,  therefore, 
have  been  privileged  in  denying  the  truth  of  the  plaintiff's  statement.  But,  upon  con- 
sideration, we  are  of  opinion  that  the  learned  Judge  was  quite  right  in  considering  the 
lan<Tuage  actually  used  as  not  justified  by  the  occasion.  Any  one,  in  the  transaction  of 
business  with  another,  has  a  right  to  use  language  bond  fide,  which  is  relevant  to  that 
business,  and  which  a  due  regard  to  his  own  interest  makes  necessary,  even  if  it  should 
directlv,  or  by  its  consequences,  be  injurious  or  painful  to  another  ;  and  this  is  the 
principle  on  which  privileged  communication  rests  ;  but  defamatory  comments  on  the 
motives  or  conduct  of  the  party  with  whom  he  is  dealing  do  not  fall  within  that  rule. 
It  was  enough  for  the  defendant's  interest,  in  the  present  case,  to  deny  the  truth  of 
the  plaintiff's  assertion  :  to  characterize  that  assertion  as  an  attempt  to  defraud,  and 
as  mean  and  dishonest,  was  wholly  unnecessary."  And  see  Robertson  v.  McDougall, 
4  Bing.  670  ;  1  M.  &  P.  692  ;  3  C.  &  P.  259  ;  Jacob  v.  Lawrence,  4  L.  R.  Ir.  579  ;  14 
Cox,  C.  C.  321. 

The  defendant  owed  the  plaintiff  £6  105.;  the  plaintiff  told  his  attorney  to  write 
and  demand  the  money,  and  threaten  proceedings.  The  defendant  in  reply  wrote  to 
the  attorney  denouncing  the  proceeding  as  a  "miserable  attempt  at  imposition,"  and 
proceeded  to  discuss  the  plaintiff's  "transactions  in  business  matters  generally," assert^ 
ing  that  "his  disgusting  tricks  are  looked  upon  by  all  respectable  men  with  scorn." 
Wmiams,  J.,  ruled  that  the  letter  was  not  privileged  and  the  Court  of  C.  P.  upheld 
this  ruling.  Damages  one  farthing  ;  the  jury  expressly  found  that  there  was  no 
malice  ;  but  the  judge  certified  for  costs  on  the  express  ground  that  there  was.  Hunt- 
ley V.  Ward,  1  F.  &  F.  552  ;  6  C.  B.  N.  S.  514  ;  6  Jur.  N.  S.  18. 

The  defendant  was  Clerk  of  the  Peace  of  the  County  of  Kent,  and  as  such 
*  228  it  was  his  duty  to  have  the  register  of  county  voters  printed,  *  the  expense  of 
such  printing  being  allowed  by  the  justices  in  Quarter  Sessions.  In  1854  the 
defendant  employed  a  new  printer,  who  charged  less  for  the  job  ;  the  defendant  wrote 
a  letter  to  the  Finance  Committee  of  the  justices  stating  his  reasons  for  the  change, 
and  added  that  to  continue  to  pay  the  charges  made  by  his  former  printer,  the  plain- 
tiff, would  be  "  to  submit  to  what  appears  to  have  been  an  attempt  to  extort  money  by 
misrepresentation."  Held  that  the  rest  of  the  letter  was  privileged,  as  it  was  proper 
and  necessary  for  the  defendant  to  explain  to  the  Finance  Committee  what  he  had 
204 


EETOETS.  *  228 

done  ;  but  that  the  words  imputing  improper  motives  to  the  plaintiff  were  uncalled  for 
and  malicious.  Damages  £50.  Cooke  v.  Wildes,  5  E.  &  B.  328  ;  24  L.  J.  Q.  B.  367  ; 
1  Jur.  N.  S.  610  ;  3  C.  L.  R.  1090. 

Defendant  having  lost  certain  bills  of  exchange,  published  a  handbill,  offering  a 
reward  for  theii-  i-ecovery,  and  adding  that  he  believed  they  had  been  embezzled  by  his 
clerk.  His  clerk  at  that  time  stUl  attended  regularly  at  his  office.  Held  that  the 
concluding  words  of  the  handbill  were  quite  unnecessary  to  defendant's  object,  and 
were  a  giatiiitous  libel  on  the  plaintiff.  Damages  £200.  Finden  v.  AVestlake,  Moo. 
&  Malk.  461.  See  Mulligan  v.  Cole,  L.  R.  10  Q.  B.  549  ;  44  L.  J.  Q.  B.  153  ; 
33  L.  T.  12  ;  Capital  and  Counties  Bank  v.  Henty  and  Sons  (in  C.  P.  D.),  28  W.  R. 
490  ;  42  L.  T.  314  ;  (C.  A.)  5  C.  P.  D.  514  ;  49  L.  J.  C.  P.  830  ;  28  W.  R.  851. 

Delivery  to  a  third  person  for  service  on  the  plaintiff  of  a  statutory  notice  under  the 
Insolvent  Act  of  1869  (Nova  Scotia)  is  prima  facie  privileged,  being  in  the  nature  of 
a  legal  proceeding.  Bank  of  British  North  America  v.  Strong,  1  App.  Cas.  307  ;  34 
L.  T.  627. 

(v.)  Statements  provoked  hy  a  previous  attack  ly  plaintiff  on 
defendant. 

Every  man  has  a  right  to  defend  his  character  against  false 
aspersion.  It  may  be  said  that  this  is  one  of  the  duties  which 
he  owes  to  himself  and  to  his  family.  Therefore  communica- 
tions made  in  fair  self-defence  are  privileged.  If  I  am  attacked 
in  a  newspaper,  I  may  write  to  that  paper  to  rebut  the  charo'es, 
and  I  may  at  the  same  time  retort  upon  my  assailant,  where  such 
retort  is  a  necessary  part  of  my  defence  or  fairly  arises 
*  out  of  the  charges  he  has  made  against  me.i  A  man  who  *  229 
himself  commenced  a  newspaper  war  cannot  subsequently 
come  to  the  Court  as  a  plaintiff,  to  complain  that  he  has  had  the 
worst  of  the  fray.  But  even  in  rebutting  an  accusation,  the  de- 
fendant may  not  of  course  state  what  he  knows  at  the  time  to  be 
untrue,  or  intrude  unnecessarily  into  the  private  hfe  or  character 
of  his  assailant.  The  privilege  extends  only  to  such  retorts  as 
the  plaintiff  has  himself  provoked.^ 

Illustrations. 

At  a  vestry  meeting  called  to  elect  fresh  overseers,  the  plaintiff  accused  the  defend- 
ant, one  of  the  outgoing  overseers,  of  neglecting  the  interests  of  the  vestry,  and  not 
collecting  the  rates  ;  the  defendant  retorted  that  the  plaintiff  had  been  bribed  by  a 
railway  company.  Held  that  the  retort  was  a  mere  tu  quoqw,  in  no  way  connected 
with  the  charge  made  against  him  by  the  plaintiff,  and  was  therefore  not  privileged; 
for  it  was  not  made  in  self-defence.     Senior  v.  Medland,  4  Jur.  N.  S.  1039  ;  and  see 

1  O'Donoghue  v.  Hussey,  Ir.  R.  5  C.  L.  124. 

2  See  post,  p.  306. 

205 


*  229  QUALIFIED   PRIVILEGE. 

Huntley  v.  Ward,  6  C.  B.  K.  S.  514;  6  Jur.  N.  S.  18;  1  F.  &  F.  552;  Murphy  v.  Hal- 
pin,  Jr.  R.  8  C.  L.  127. 

The  plaintiff  was  a  policy-holder  in  an  insurance  company,  and  published  a  pam- 
phlet accusing  the  directors  of  tliat  company  of  fraud.  The  directors  published  a 
pamphlet  in  reply,  declaring  the  charges  contained  in  the  plaintiff's  pamphlet  to  be 
false  and  calumnious,  and  also  asserting  that  in  a  suit  he  had  instituted  he  had  svvoru 
in  support  of  those  charges,  in  opposition  to  his  own  handwriting.  Cockburn,  C.J., 
held  the  directors'  pamphlet  2'rimd  facie  privileged;  and  directed  the  jury  in  the  fol- 
lowing words: — "If  you  are  of  opinion  that  it  was  published  bond  fide  for  the 
purpose  of  the  defence  of  the  company,  and  in  order  to  prevent  these  charges  from  oper- 
ating to  their  prejudice,  and  with  a  view  to  vindicate  the  character  of  the  directors,- 
and  not  with  a  view  to  injure  or  lower  the  character  of  the  plaintiff" —  if  you  are  of  that 
opinion  and  think  that  the  publication  did  not  go  beyond  the  occasion,  then  you  ought 
to  find  for  the  defendants  on  the  general  issue."  Verdict  for  the  defendants.  Koenig 
V.  Eitchie,  3  F.  &  F.  413;  R.  v.  Veley,  4  F.  &  F.  111/. 

The  defendant  was  a  candidate  for  the  County  of  Waterford.     Shortly  before  the 

election  the  Kilkenny  Tenant  Farmers'  Association  published  in  Freeman's  JourvM  an 

address  to  the  constituency  describing  the  defendant  as  "a  true  type  of  a  bad  Irish 

landlord  —  the  scourge  of  the  country,"  and  charging  him  with  vaiious  acts 

*  230    of  tyranny  and  oppression  towards  his  *  tenants,  and  especially  towards  the 

plaintiff,  one  of  his  former  tenants.  The  defendant,  thereupon,  published, 
also  in  Freeman's  Journal,  an  address  to  the  constituency,  answering  the  charges  thus 
brought  against  him,  and  in  so  doing  necessarily  libelled  the  plaintiff.  Held  that  such 
an  address,  being  an  answer  to  an  attack,  was  primd  facie  privileged.  Dwyer  v.  Es- 
monde,  2  L.  R.  (Ir.)  243,  reversing  the  decision  of  the  Court  below;  Ir.  E.  11  C.  L.  542, 
See  also  O'Donoghue  v.  Hussey,  Ir.  R.  5  C.  L.  124. 

The  plaintiff,  a  barrister,  attacked  the  Bishop  of  Sodor  and  Man  before  the  House  of 
Keys  in  an  argument  against  a  private  bill,  imputing  to  the  bishop  improper  motives 
in  his  exercise  of  church  patronage.  The  bishop  wrote  a  charge  to  his  clergy  refuting 
these  insinuations,  and  sent  it  to  the  newspapers  for  publication.  Held  that  under  the 
circumstances  the  bishop  was  justified  in  sending  the  charge  to  the  newspaper,  for  an 
attack  made  in  public  required  a  public  answer.  Laughton  v.  Bishop  of  Sodor  and 
Man,  L.  R.  4  P.  C.  495  ;  42  L.  J.  P.  C.  11  ;  9  Moore,  P.  C.  C.  K  S.  318  ;  21  W.  R. 
204  ;  28  L.  T.  377.  See  Hibbs  v.  "Wilkinson,  1  F.  &  F.  608  ;  Hemmings  v.  Gasson,  E. 
B.  &  E.  346  ;  27  L.  J.  Q.  B.  252  ;  4  Jur.  K.  S.  834. 

Such  previous  attacks  might  also  be  matter  for  a  counterclaim.  Quin  v.  Hession,  40 
L.  T.  70;  4L.  R.  (Ir.)  35. 

Statements  invited  hy  the  plaintiff. 

Closely  akin  to  retorts  provoked  by  the  plaintiff's  own  attack, 
are  communications  procured  by  the  plaintiff's  own  contrivance. 
If  the  only  publication  that  can  be  proved  is  one  made  by  the 
defendant  to  the  plaintiff  or  to  some  agent  of  the  plaintiff,  and  it 
is  clear  that  such  publication  was  procured  mala  fide  with  a  view 
to  the  action,  and  not  in  the  ordinary  course  of  business  or  of 
social  intercourse,  then  such  a  publication  will  be  held  privileged; 
for  the  plaintiff  brought  it  on  himself.  But  this  rule  only  applies 
206 


STATEMENTS    IXTITED   BY   THE   PLAIXTTFF.  *  230 

to  cases  in  whicli  there  had  been  no  previous  publication  by  the 
defendant  of  the  same  words  or  libel. ^ 

It  makes  a  great  ditference  if  the  report  originated  with  the  de- 
fendant, and  what  he  has  himself  previously  said  produces  the  *  plain-  *  231 
tiif 's  inquiry.^  If  in  answer  to  such  an  inquiry  the  defendant  does 
no  more  than  acknowledge  having  uttered  the  words,  no  action  can  he 
brought  for  tlie  acknowledgment :  the  party  injured  must  sue  for  the  words 
previously  spoken,  and  use  the  acknowledgment  as  proof  that  those  words 
had  been  spoken.  But  if  besides  saying  "  Yes  "  to  the  question  asked,  he 
repeats  the  words  in  the  presence  of  a  third  person,  asserting  his  belief  in 
the  accusation  and  that  he  can  prove  it ;  such  a  statement  is  slanderous 
and  is  not  privileged,  although  elicited  by  the  plaintitf  s  question.  See 
Griffiths  V.  Lewis,^  in  which  case  Lord  Denmau  remarks  :  "  Injurious  words 
having  been  uttered  by  the  defendant  respecting  the  plaintiff,  the  plaintiif 
was  bound  to  make  inquiry  on  the  subject.  When  she  did  so,  instead  of 
any  satisfaction  from  the  defendant,  she  gets  only  a  repetition  of  the  slan- 
der. The  real  question  comes  to  this,  does  the  utterance  of  slander  once 
give  the  privilege  to  the  slanderer  to  utter  it  again  whenever  he  is  asked 
for  an  explanation  ?  It  is  the  constant  course,  when  a  person  hears  that  he 
has  been  calumniated,  to  go,  with  a  witness,  to  the  party  who,  he  is  in- 
formed, has  uttered  the  injurious  words,  and  say,  '  Do  you  mean  in  the 
presence  of  witnesses  to  persist  in  the  charge  you  have  made  ? '  And  it  is 
never  wise  to  bring  an  action  for  slander  unless  some  such  course  has  been 
taken.  But  it  never  has  been  supposed,  that  the  persisting  in  and  repeat- 
ing the  calumny,  in  answer  to  such  a  question,  which  is  an  aggravation  of 
the  slander,  can  be  a  privileged  communication ;  and  in  none  of  the  cases 
cited  has  it  ever  been  so  decided."  *  If,  however,  the  second  occasion  on 
which  the  words  were  spoken  is  clearly  privileged  and  justifiable,  the  mere 
fact  that  defendant  had  previously  spoken  them  will  not  of  itself  destroy 
the  privilege ;  the  plaintiff  must  rely  on  the  first  utterance  :  that  may  be 
privileged  as  well.^  This  rule  is  sometimes  cited  as  an  instance  of  the 
maxim  "  Volenti  non  fit  injuria"  and  is  then  not  classed  as  a  ground  ot 
privilege,  but  would  rather  be  stated  thus  :  —  That  if  the  only  publication 
proved  at  the  trial  be  one  brought  about  by  the  plaintiff's  own  con- 
trivance, this  is  no  sufficient  evidence  of  *  publication,  and  the  *  232 
plaintiff  must  be  nonsuited.     Such  was  the  ruling  of  Lord  Ellen- 

1  Duke  ot  Brunswick  v.  Harraer,   14  Q.  B.  185;  19  L.  J.  Q.  B.  20;  14  Jur.  110;  3 
C.  &  K.  10. 

2  Per  Lord  Lyndhurst  in  Smith  v.  Mathews,  1  I\Ioo.  &  Eob.  151. 
8  7  Q.  B.  61;  14  L.J.  Q.  B.  199. 

*  And  see  Richards  v.  Richards,  2  Moo.  &  Rob.  557  ;    Force  v.  Warren,  15  C.  B. 
(N.  S.)  806. 

6  Kine  v.  Sewell,  3  M.  &  W.  297. 

207 


*232  QUALIFIED   PRIVILEGE. 

borough  in  Smith  v.  Wood  ;  ^  but  this  is  inconsistent  with  Duke  of  Bruns- 
wick V.  Harmer ;  ^  and  in  Warr  v.  JoUy,^  it  was  expressly  held  that  a  com- 
munication purposely  procured  by  the  plaintiff  was  privileged. 


Illustrations. 

"  If  a  servant,  knowing  the  character  which  his  master  will  give  of  him,  procures  a 
letter  to  be  written,  not  with  a  fair  view  of  inquiring  the  character,  but  to  jirocure  an 
answer  upon  which  to  ground  an  action  for  a  libel,  no  action  can  be  maintained."  Per 
Lord  Alvanley  in  King  v.  Waring  et  ux.,  5  Esp.  15. 

The  defendant  discharged  the  plaintiff,  his  servant,  and  when  applied  to  by  another 
gentleman,  gave  him  a  bad  character.  The  plaintiti"s  brother-in-law,  Collier,  there- 
upon repeatedly  called  on  the  defendant  to  inquire  why  he  had  dismissed  the  plaintiif  : 
and  at  last  the  defendant  wrote  to  CoUier  stating  his  reasons  specifically.  The  plain- 
tiff sued  out  a  writ  the  same  day  the  letter  was  written.  Held,  by  Lord  Mansfield, 
C.J.,  and  Butler,  J.,  that  no  action  lay  on  such  letter,  as  the  defendant  was  evidently 
entrapped  into  writing  it.  Weatherston  v.  Hawkins,  1  T.  R.  110.  See  also  Taylor  v. 
Hawkins,  16  Q.  B.  308  ;  20  L.  J.  Q.  B.  313  ;  R.  v.  Hart,  1  Wm.  Black,  386  ;  and  the 
remarks  of  Lord  Alvanley,  C.J.,  in  Rogers  v.  Clifton,  3  B.  &  P.  592. 

A  witness  (whom  we  must  presume  to  have  been  an  agent  of  the  plaintifiTs,  though 
it  is  not  so  stated  in  the  report)  heard  that  the  defendant  had  a  copy  of  a  libellous 
print,  went  to  defendant's  house,  and  asked  to  see  it  ;  the  defendant  thereupon  pro- 
duced it,  and  pointed  out  the  figure  of  the  plaintiff  and  the  other  i^ersons  caricatured. 
Lord  EUenborough  nonsuited  the  plaintiff,  as  there  was  no  other  publication  proved. 
Smith  V.  Wood,  3  Camp.  323. 

The  plaintiff  had  been  in  partnership  with  his  brother-in-law,  Pinhom,  as  a  linen- 
draper  at  Southampton  ;  but  gave  up  business  and  became  a  dissenting  minister. 
Rumors  reached  his  congregation  that  he  had  cheated  his  brother-in-law  in  the  settle- 
ment of  tlie  accounts  on  his  retirement  from  the  partnership.  The  plaintiff  challenged 
inquiry  and  invited  the  malcontents  in  the  congi-egation  to  appoint  some  one  to  thor- 
oughly sift  the  matter.  The  malcontents  appointed  the  defendant,  and  the  plaintiff 
appointed  the  Rev.  Robert  Ainslie.  Held,  that  all  communications  between  the  de- 
fendant and  Ainslie  relative  to  the  matter  were  pri\ileged,  as  being  made  M'ith  the 
sanction  and  concurrence  of  the  plaintiff.     Hopwood  v.  Thorn,  8  C.  B.  293;  19  L.  J. 

C.  P.  94;  14  Jur.  87.  And  see  Sayer  v.  Begg,  15  Ir.  C.  L.  R.  458. 
*  233  *  I"  answer  to  plaintiff's  inquiry  as  to  a  rumor  against  himself,  defendant 
told  him,  in  the  presence  of  a  third  party,  what  some  one  had  said  to  his 
(defendant's)  wife.  There  was  no  proof  that  the  defendant  had  ever  uttered  a  word 
on  the  subject  till  he  was  applied  to  by  the  plaintiff.  Reld  that  the  answer  was 
privileged.  Warr  v.  Jolly,  6  Car.  &  P.  497,  as  explained  by  Lord  Denman  in  Griffiths 
V.  Lewis,  7  Q.  B.  67  ;  14  L.  J.  Q.  B.  199  ;  9  Jur.  370.  And  see  Richards  v.  Richards, 
2  Moo.  &  Rob.  557. 

The  plaintiff  was  a  builder  and  contracted  to  build  certain  schoolrooms  at  Ber- 
mondsey.  The  defendant  started  a  false  report  that  in  the  building  the  plaintiff  had 
used  inferior  timber ;  the  report  reached  the  plaintiff,  who  thereupon  suspended  the 
work  and  demanded  an  inquiry  ;  and  the  committee  of  the  school  employed  defendant 
to  survey  the  work  and  report.  He  reported  falsely  that  inferior  timber  was  used. 
Lord  Lyndhurst  directed  the  jury  that  if  they  believed  that  the  reports  which  pro- 

1  3  Camp.  323.  2  14  Q,  B.  185.  8  q  Car.  &  P.  497. 

208 


COMMON  INTEEEST.  *  233 

duced  the  inquiry  originated  with  the  defendant,  the  defendant's  report  to  the  com- 
mittee was  not  privileged.  Verdict  for  the  plaintiff.  Smith  v.  Mathews,  2  Moo.  & 
Rob.  151. 

Barton,  a  friend  of  the  defendant,  employed  a  builder,  the  plaintiff's  master,  to 
build  a  house  for  him  :  the  defendant  informed  Barton  that  the  plaintift'  while  at  work 
on  his  house  had  stolen  some  quarterings.  Barton  complained  to  the  master  builder, 
who  came  down  to  the  defendant's  to  inquire  into  the  circumstances.  A  repetition  of 
the  charge  made  then  to  the  plaintiti"s  master  without  malice  was  held  privileged,  and 
as  the  plaintiff  had  not  called  Barton  to  prove  the  original  remark,  the  jury  found  for 
the  defendant,  and  a  new  trial  was  refused.  Kine  v.  Sewell,  3  M.  &  W.  297.  But 
note  that  the  statement  made  to  Barton  would,  if  proved,  have  been  privileged  also, 
although  voluntary,  as  he  was  the  owner  of  the  property  alleged  to  have  been  stolen. 


*  II.  Where   the  defendant   has   an   interest  in   *  284 

THE   subject-matter    OF    THE    COMMUNICATION, 

AND    THE    PERSON    TO    WHOM    THE    COMMUNICATION    IS 

MADE,   HAS   A  CORRESPONDING  INTEREST. 

In  such  a  case  every  communication  honestly  made  in  order  to 
protect  such  common  interest  is  privileged  by  reason  of  the 
occasion. 

Such  common  interest  is  generally  a,  pecuniary  one  ;  as  that  of 
two  customers  of  the  same  bank,  two  directors  of  the  same  com- 
pany, two  creditors  of  the  same  debtor.  But  it  may  also  be 
professional,  as  in  the  case  of  two  officers  in  the  same  corps,  or 
masters  in  the  same  school,  anxious  to  preserve  the  dignity  and 
reputation  of  the  body  to  which  they  both  belong.  In  short,  it 
may  be  any  interest  arising  from  the  joint  exercise  of  any  legal 
right  or  privilege,  or  from  the  joint  performance  of  any  duty 
imposed  or  recognized  by  the  law.  Thus  two  executors  of  the 
same  will,  two  trustees  of  the  same  settlement,  have  a  common 
interest,  though  not  a  pecuniary  one,  in  the  management  of  the 
trust  estate.  So  the  ratepayers  of  a  parish  have  a  common 
interest  in  the  selection  of  fit  and  proper  constables  to  serve  in 
the  parish,  their  salary  being  paid  out  of  the  rates.  So  relations 
by  blood  or  marriage  have  a  common  interest  in  their  family 
concerns.  But  beyond  this  there  is  no  privilege.  The  "com- 
mon interest "  must  be  one  which  the  law  recognizes  and  appre- 
ciates. No  privilege  attaches  to  gossip,  however  interesting  it 
may  be  to  both  speaker  and  hearers.  The  law  never  sanctions 
mere  vulgar  curiosity  or  officious  intermeddling  in  the  concerns 
of  others.     To  be  within  the  privilege,  the  statement  must  be 

14  209 


*  234  QUALIFIED  PRIVILEGE. 

such  as  the  occasion  warrants,  and  must  be  made  bond  fide 

*  235    to  protect  the  private  interests  *  both  of  the  speaker  and 

of  the  person  addressed.  If  in  fact  the  defendant  had  no 
other  interest  in  the  matter  beyond  that  which  any  other  edu- 
cated person  woukl  naturally  feel,  interference  on  his  part  would 
be  ofhcious  and  unprivileged.^ 

Illustrations. 

The  defendant  and  Messrs.  "Wright  and  Co.,  his  bankers,  were  both  interested  in  a 
concern,  the  management  of  which  the  bankers  had  intrusted  to  the  plaintiff,  their 
solicitor.  A  confidential  letter  written  by  the  defendant  to  Messrs.  Wright  and  Co., 
charging  the  plaintitf  with  professional  misconduct  in  the  management  of  such  concern 
was  held  privileged  by  Lord  Ellenborough.     McDougall  v.  Claridge,  1  Camp.  267. 

A  creditor  of  the  plaintiff  may  comment  on  the  plaintiff's  mode  of  conducting  his 
business  to  the  man  who  is  surety  to  that  creditor  for  the  plaintifTs  trade  debts.  Dun- 
raan  v.  Bigg,  1  Camp.  269,  n. 

Where  A.  &  B.  have  a  joint  interest  in  a  matter,  a  letter,  written  by  A.  to  induce 

B.  to  become  a  party  to  a  suit  relating  thereto,  is  privileged  though  it  may  refer  to  the 
plaintiff  in  angry  terms.     Shipley  v.  Todhunter,  7  C.  &  P.  680. 

A  creditor  was  appointed  trustee  in  liquidation  of  the  debtor's  estate,  the  debtor 
continuing  to  manage  his  former  business  for  the  benefit  of  the  estate.  A  letter  writ- 
ten by  the  trustee  to  another  creditor,  commenting  in  very  severe  teims  on  the  debtor's 
conduct,  is  privileged.  Spill  v.  Maule,  L.  E.  4  Exch.  232  ;  38  L.  J.  Ex.  138  ;  17  W. 
K.  805  ;  20  L.  T.  675. 

A  person  interested  in  the  proceeds  of  a  sale  may  give  notice  to  the  auctioneer  not 
to  part  with  them  to  the  plaintiff,  who  ordered  the  sale,  on  the  ground  that  he  has 
committed  an  act   of  bankruptcy.     Blackham  v.   Pugh,    2   C.   B.   611  ;    15   L.    J. 

C.  P.  290. 

So  the  son-in-law  of  a  lady  has  suflBcient  interest  in  whom  she  marries  to  justify 
him  in  warning  her  not  to  marry  the  plaintiff,  if  he  honestly  believes  him,  however 
erroneously,  to  be  of  bad  character.     Todd  v.  Hawkins,  8  C.  &  P.  88  ;  2  M.  &  Piob.  20. 

So,  too,  a  bishop's  charge  to  his  clergy  is  prima  facie  privileged,  although  it  contain 
calumniatory  matter.  Laughton  v.  Bishop  of  Sodor  and  Man,  L.  R.  4  P.  C.  495  ;  42 
L.  J.  P.  C.  11  ;  21  W.  E.  204  ;  28  L.  T.  377  ;  9  Moore,  P.  C.  C.  N.  S.  318. 

So  the  reports  of  the  directors  and  auditors  of  a  company  printed  and  circulated 
among  the  shareholders  are  privileged.  Lawless  v.  Anglo-Egj^)tian  Cotton  Co.,  L.  R. 
4  Q.  B.  262  ;  10  B.  &  S.  226  ;  38  L.  J.  Q.  B.  129  ;  17  W.  R.  498. 

A  communication  from  a  firm  of  brewers  to  the  tenants   of  their  public- 

*  236     *  houses,   refusing  to  accept  any  longer  in  payment  cheques  drawn  on  a 

particular  bank  is  primd  facie  privileged.     Capital  and  Counties  Bank  v. 

Henty  and  Sons  (in  C.  P.  D.)  ;  28  W.  R.  490  ;  42  L.  T.  314  ;  (C.  A.)  5  C.  P.  D.  514  ; 

49  L.  J.  C.  P.  830  ;  28  W.  R.  851. 

Defendant  was  a  life  governor  of  a  public  school  to  which  the  plaintiff  supplied 
butchers'  meat ;  defendant  told  the  steward  of  the  school,  whose  duty  it  was  to  exam- 
ine the  meat,  that  plaintiff  had  been  known  to  sell  bad  meat.  Held  a  privileged 
communication.  Humphreys  v.  Stillwell,  2  F.  &.  F.  590.  And  see  Crisp  v.  Gill,  29 
L.  T.  (Old  S.)  82. 

1  Botterill  &  another  v.  Whvtehead,  41  L.  T.,  588. 

210 


COMIVION   INTEREST.  *  236 

A  Member  of  Parliament  gave  notice  that  he  would  ask  in  the  House  of  Commons 
why  the  plaiutiif,  a  colonel  in  the  army,  had  been  dismissed  ;  thereupon  the  defend- 
ant, the  idaintiff  s  superior  officer,  who  had  been  instrumental  in  procuring  his  dis- 
charge, called  on  the  member,  whom  he  knew  well,  to  explain  the  true  facts  of  the 
case.  Lord  Campbell  considered  the  occasion  2>rt»i<t  facie  privileged ;  but  the  jury 
found  it  was  done  maliciously,  and  awarded  the  plaintiff  £200  damages.  Dickson  v. 
Earl  of  Wilton,  1  F.  &  F.  419. 

A  bond  fide  communication  between  a  Member  of  Parliament  and  his  constituents 
on  a  matter  of  political  or  local  interest  is  privileged  ;  such  as  a  report  of  any  speech 
of  his,  circulated  privately  among  his  constituents  for  their  information.  Per  Lord 
Campbell,  C.J.,  and  Crompton,  J.,  in  Davison  v.  Duncan,  7  E.  &  B.  233  ;  26  L.  J. 
Q.  B.  107.  And  Cockburn,  C.J.,  in  Wason  v.  Walter,  L.  R.  4  Q.  B.  95  ;  8  B.  &  S.  730  ; 
38  L.  J.  Q.  B.  42  ;  17  W.  E.  169  ;  19  L.  T.  416. 

But  it  would  be  otherwise  if  a  member  of  Parliament  published  his  speech  to  all  the 
world  with  the  malicious  intention  of  injuring  the  plaintiff.  R.  v.  Lord  Abingdon,  1 
Esp.  226  ;  E.  v.  Creevey,  1  M.  &  S.  273. 

If  a  parish  officer  seek  re-election,  charges  made  against  him  at  the  parish  meeting 
for  the  nomination  of  officers  as  to  his  previous  conduct  in  the  office,  are  privileged,  if 
made  bond  fide.  George  v.  GodJavd,  2  F.  &  F.  689  ;  Kershaw  v.  Bailey,  1  Ex.  743  ;  17 
L.  J.  Ex.  129.  See  Senior  v.  Medland,  4  Jur.  N.  S.  1039  ;  Pierce  v.  Ellis,  6  Ir.  C.  L. 
E.  55  ;  Bennett  v.  Barry,  8  L.  T.  857  ;  Harle  v.  Catherall,  14  L.  T.  801. 

But  as  to  a  personal  attack  on  the  private  character  of  a  candidate  at  parliamentary 
election,  see  Duncombe  v.  Daniell,  8  C.  &  P.  222  ;  2  Jur.  32;  1  W.  W.  &  H.  101  ; 
Sir  Thomas  Charges  v.  Eoue,  3  Lev.  30.  How  v.  Piin,  Holt,  652  ;  7  Mod.  107  ;  2  Salk. 
694  ;  2  Ld.  Eaym.  812  ;  affirmed  in  the  House  of  Lords,  sub  nomine  Prinn  v.  Howe,  1 
Brown's  Pariy.  Cas.  64.  Onslow  v.  Home,  3  AVils.  177  ;  2  W.  Bl.  750  ;  Harwood  v. 
Sir  J.  Astley,  1  K.  E.  47.  («) 

*  A  parish  meeting  was  called  to  investigate  the  accounts  of  the  parish         /O  i 
constable  ;  one  ratepayer  was  unable  to  attend,  so  he  wrote  a  letter  to  be  read 
to  the  meeting  concerning  the  constable  and  his  accounts.     This  letter  was  heldi  primd 
facie  privileged.     For  had  he  attended  the  meeting  and  made  the  same  charge  orally, 
such  speech  would  have  been  privileged,  (i)     Spencer -y.  Amerton,  1  Moo.  &  Rob.  470. 

Several  fictitious  orders  for  goods  had  been  sent  in  the  defendant's  name  to  a  trades- 

(a)  See  also  Hamilton  v.  Euo,  81  N.  Y.  Lucas  v.  Case,  9  Bush,  297  ;  York  v.  Pease, 
116  ;  Lewis  v.  Few,  5  Johns.  1  ;  Eoot  v.  2  Gray,  282  ;  Farnsworthv.  Storrs,  5  Cu.sh. 
King,  7  Cowen,  613  ;  s.  c.  4  Wend.  113  ;  412  ;  Dunn  v.  Winters,  2  Humph.  512  ; 
Kimball  tJ.  Fernandez,  41  Wis.  329;  Wil-  Smith  v.  Youmans,  3  Hill  (S.  Car.),  85. 
son  V.  Xoonan,  35  Wis.  321  ;  s.  c.  27  Wis.  But  an  accusation  made  by  a  member  of  a 
610  and  23  Wis.  105  ;  Barr  v.  Moore,  87  church,  though  in  the  regular  course  of 
Penn.  St.  385  ;  Sweeney  v.  Baker,  13  W.  discipline  against  a  person  not  a  member, 
Va.  158  ;  Commonwealth  v.  Clap,  4  Mass.  is  not  privileged.  Coombs  v.  Eose,  sujmi.. 
163  ;  Curtis  v.  Mussey,  6  Gray,  281  ;  ante.  See  further  Remington  v.Congdon,  2  Pick, 
p.  40,  note.  310;  Jarvis  v.   Hatheway,   3  Johns.   180; 

(b)  Words  spoken  or  written  in  the  O'Donoghue  v.  McGovern,  23  Wend.  26; 
regular  course  of  church  discipline  to  or  of  Dial  v.  Holter,  6  Ohio  St.  228  ;  Whitaker 
members  of  the  church  are  among  the  v.  Carter,  4  Ired.  461  ;  Farnsworth  v. 
members  themselves  privileged  unless  ex-  Storrs,  5  Cush.  412  ;  Fairchild  v.  Adams, 
press  malice  is  shown.  Kleizer  v.  Symmes,  11  Cush.  549;  Shelton  v.  Nance,  7  B. 
40  Ind.  562  ;  Coombs  v.  Rose,  8  Blackf.  Mon.  128  ;  Holt  v.  Parsons,  23  Texas,  9  ; 
155  ;  Jarvis  v.  Hathaway,  3  Johns.  180;  Bradley t).  Heath,  12  Pick.  163;  Smiths. 
O'Donoghue  v.   McGovern,  23  Wend.  26;  Youmans,  3  Hill  (S.  Car.),  85. 

211 


*  237  QUALIFIED  PRIVILEGE. 

man,  who  thereupon  delivered  the  goods  to  the  defendant.  The  defendant  returned 
the  goods,  and  being  shown  the  letters  ordering  them,  wrote  to  the  tradesman  that  in 
his  opinion  the  letter  was  in  the  plaintiff's  handwriting.  Held  that  this  expi-ession  o 
opinion  was  privileged,  as  both  defendant  and  the  tradesman  were  interested  in  dis- 
covering the  culprit.  Croft  v.  Stevens,  7  H.  &  N.  570  ;  31  L.  J.  Ex.  143  ;  10  W.  E. 
272  ;  5  L.  T.  683. 

The  defendant  had  a  dispute  with  the  Newry  Mineral  Water  Company,  which  they 
agi'eed  to  refer  to  "some  respectable  printer  who  should  be  indifferent  between  the 
parties,"  as  arbitrator.  The  manager  of  the  company  nominated  the  plaintiff,  a  print- 
er's commercial  traveller.  The  defendant  declined  to  accept  him  as  arbitrator,  and 
when  pressed  for  his  reason,  wrote  a  letter  to  the  manager  stating  that  the  plaintiff  had 
formerljf  been  in  the  defendant's  employment,  and  had  been  dismissed  for  drunkenness. 
The  plaintiff,  thereupon,  brought  an  action  on  the  letter  as  a  libel  concerning  him  in 
the  way  of  his  trade.  Held  that  the  letter  was  privileged,  as  both  parties  were  inter- 
ested in  the  selection  of  a  proper  arbitrator.     Hobbs  v.  Bryers,  2  L.  E.  Ir.  496. 

But  a  judge  of  the  Bankruptcy  Court  and  an  opposing  creditor  have  no  such  com- 
mon interest  in  the  case  of  an  insolvent  debtor  as  to  render  privileged  a  letter  written 
by  the  creditor  to  the  judge  previously  to  the  hearing  of  the  case.  Writing  such  a  letter 
is  indeed  a  contempt  of  Court.     Gould  v.  Hulme,  3  C.  &  P.  625. 

But  where  a  large  number  of  persons  have  an  interest  more  or 
less  remote  in  the  matter,  defendant  will  not  be  privileged  in  in- 
forming them  all  by  circular  or  otherwise,  unless  there  was  no 
otlier  way  of  effecting  his  object.  Thus  in  the  case  of  most  soci- 
eties there  is  a  council,  or  a  managing  committee,  or  a  manager, 
or  a  body  of  trustees ;  and  communications  made  confidentially 
to  them  will  be  privileged  which  would  not  be  privileged,  if 
addressed  in  the  first  instance  to  the  whole  body  of  subscribers. 
"  Such  a  communication  as  the  present  (a  charge  against  the 
medical  officer  of  a  Poor  Law  Union)  ought  to  be  confined 

*  238    in  the  first  instance  to  *  those  whose  duty  it  is  to  investi- 

gate the  charges."^ 
A  communication  can  scarcely  be  called  confidential  which  is 
addressed  to  some  two  or  three  hundred  people  at  once.  Thus 
the  mere  fact  that  I  subscribe  to  a  charity  does  not  entitle  me  to 
canvass  the  private  character,  and  discuss  the  private  concerns, 
of  the  medical  man  employed  by  the  charit}^  and  so  cause  his 
])ast  life  to  become  a  topic  of  general  conversation  in  the  town ; 
although  any  representation  made  to  the  managing  committee 
would  be  privileged ;  and  if  absolutely  necessary  to  the  success 
of  the  charity,  I  might  after  due  notice  given  to  the  medical  man, 
appeal  from  the  decision  of  the  committee  to  the  general  body  of 
subscribers.^ 

1  Per  Mellish,  L.J.,  in  Pureell  v.  Sowler,  2  C.  P.  D.  at  p.  221. 

2  Martin  v.  Strong,  5  A.  &  E.  535,  as  explained  in  Kine  v.  Sewelf,  3  M.  &  W.  297. 

212 


EXTENT   OF   COMMUNICATION.  *  238 


Illustrations. 


A  letter  written  by  a  subscriber  to  a  charity  to  tbe  committee  of  management  of  tbe 
charity  concerning  the  conduct  of  their  secretary  in  the  management  of  the  funds  of 
the  charity  \&  prima  facie  privileged.  Maitland  v.  Bramwell,  2  F.  &  F.  623.  See  also 
Hartvvell  v.  Vesey,  3  L.  T.  275. 

Any  statement  made  by  a  director  of  a  company  to  his  fellow  directors,  as  to  the 
conduct  and  character  of  their  auditor,  is  privileged,  though  it  relates  to  his  conduct 
with  reference  to  another  company,  of  which  he  was  secretary  and  not  auditor.  Harris 
V.  Thompson,  13  C.  B.  333. 

But  it  would  seem  that  a  similar  statement,  if  made  by  one  private  shareholder  in 
the  company  to  another,  would  not  be  privileged.  Brooks  v.  Blanshard,  1  Cr.  &  Mees. 
779  ;  3  Tyiw.  844, 

Defendant,  who  was  a  sergeant  in  a  volunteer  corps,  of  which  plaintiff  also  was  a 
member,  represented  to  the  committee  by  whom  the  general  business  of  the  corps  was 
conducted,  that  plaintiflf  was  an  unfit  person  to  be  permitted  to  continue  a  member  of 
the  corps  ;  that  he  was  the  executioner  of  the  French  king,  &c.  Lord  Ellenborough 
held  the  communication  privileged.  Barbaud  v.  Hookham,  5  Esp.  109.  See  Bell  v. 
Parke,  10  Ir.  C.  L.  E.  284  ;  11  Jr.  C.  L.  R.  413. 

But  for  one  member  of  a  charitable  institution  to  send  round  to  all  the  sub- 
scribers *  a  circular  calling  on  them  "to  reject  the  unworthy  claims  of  ]\Iiss     *  239 
Hoare,"  and  stating  that  "  she  squandered  away  the  money  which  she  did 
obtain  from  the  benevolent  in  printing  circulars  abusive  of  Commander  Dickson,"  the 
secretary  of  the  institution,  is  libellous,  and  not  privileged.     Hoare  v.  Silverlock  (No.  1; 
1848),  12  Q.  B.  624  ;  17  L.  J.  Q.  B.  306  ;  12  Jur.  695. 

"There  may  be  a  thousand  subscribers  to  a  charity,"  observes  Lord  Denman  in 
Martin  v.  Strong,  5  Ad.  &  E.  538.     "  Such  a  claim  of  privilege  is  too  large." 

And  a  fortiori,  if  the  words  be  spoken  in  the  presence  of 
strangers  wholly  uninterested  in  the  matter,  the  communication 
loses  all  privilege.  The  defendant  in  all  these  cases  must  be 
careful  that  the  publication  "does  not  go  bej^ond  the  occasion," 
that  is,  that  his  words  should  be  confined  to  those  who  are  con- 
cerned to  hear  them.  Words  of  admonition  or  of  confidential 
advice  should  be  given  privately.  It  is  true  that  the  accidental 
presence  of  some  third  person  will  not  alone  take  the  case  out  of 
the  privilege,  if  it  was  unavoidable  or  happened  in  the  usual 
course  of  business  affairs.  But  if  the  defendant  purposely  con- 
trives that  a  stranger  should  be  present,  who  has  no  right  to  be 
present,  and  who  in  the  natural  course  of  things  would  not  be 
present,  all  privilege  is  lost.^ 

So  too  in  making  a  communication  which  is  only  privileged  by 
reason  of  its  being  made  to  a  person  interested  in  the  subject- 
matter  thereof,  the  defendant  must  be  careful  not  to  branch  out 

1  Kershaw  v.  Bailey,  1  Ex.  743  ;  17  L.  J,  Ex.  129  ;  Scarll  v.  Dixou,  4  F.  &  F.  250. 

213 


*  239  QUALIFIED   PEIVILEGE. 

into  extraneous  matters  with  which  such  person  is  unconcerned. 
The  privilege  only  extends  to  that  portion  of  the  communication 
in  respect  of  which  the  parties  have  a  common  interest  or  duty. 

The  defendant  must  also  be  careful  to  avoid  the  use  of  exaof- 
gerated  expressions ;  for  the  privilege  may  be  lost  by  the  use  of 
violent  language  when  it  is  clearly  uncalled  for.^ 

*  240        *  And  especially  in  cases  where  a  rumor  reaches  the  de- 

fendant, of  which  he  feels  it  his  duty  to  inform  others  who 
are  equally  interested  with  himself  in  its  subject-matter,  he  should 
be  very  careful  to  report  it  precisely  as  he  heard  it,  without  any 
addition  or  exaggeration.^ 

In  short  whenever  the  mode  and  extent  of  a  privileged  publi- 
cation are  more  injurious  to  the  plaintiff  than  necessary,  this  may 
be  evidence  of  malice  in  the  publisher.  Though  the  words  them- 
selves would  be  privileged  if  addressed  only  to  the  few  individuals 
concerned,  yet  the  privilege  may  be  lost  if  the  defendant  deliber- 
ately chooses  to  publish  them  to  the  general  public,  or  to  any  one 
who  had  no  corresponding  interest  in  the  communication.  Con- 
fidential communications  should  not  be  shouted  across  the  street 
for  all  the  world  to  hear.^  Defamatory  remarks,  if  written  at  all, 
should  be  sent  in  a  private  letter  properly  sealed  and  fastened 
up :  not  written  on  a  postcard,  or  sent  by  telegram ;  for  two 
strangers  at  least  read  every  telegram,  many  more  most  postcards.^ 

Letters  as  to  the  plaintiff's  private  affairs  should  not  be  pub- 
lished in  the  newspaper,  however  meritorious  the  writer's  purpose 
may  be :  unless  indeed  there  is  no  other  way  in  which  the  writer 
can  efficiently  effect  his  purpose  and  discharge  the  duty  which 
the  law  has  cast  upon  him.  So  with  an  advertisement  inserted 
in  a  newspaper,  defamatory  of  the  plaintiff;  if  such  advertise- 
ment be  necessary  to  protect  the  defendant's  interest,  or  if  ad- 
vertising was  the  only  way  of  effecthig  the  defendant's 

*  241    *  object,  and  such  object  is  a  legal  one,  then  the  circum- 

stances excuse  the  extensive  publication.  But  if  it  was 
not  necessary  to  advertise  at  all,  or  if  the  defendant's  object  could 
have  been  equally  well  effected  by  an  advertisement  which  did 

1  Fryer  v.  Kinnersley,  15  C.  B.  N.  S.  422  ;  33  L.  J.  C.  P.  96  ;  10  Jur.  N.  S.  441  ;  12 
W.  R.  155  ;  9  L.  T.  415  ;  Senior  v.  Medknd,  4  H.  &  N.  843  ;  4  Jur,  N.  S.  1039, 

2  Bromage  v.  Prosser,  4  B.  &  Cr.  247  ;  6  Dowl.  &  E.  296. 

8  Wilson  V.  Collins,  5  C.  &  P,  373  ;  Oddy  v.  Lord  George  Paulet,  4  F,  &  F,  1009, 
*  Williamson  v.  Freer,  L,  R,  9  C.  P,  393  ;  43  L.  J.  C.  P,  161  ;  •Whitfield  v.  S.  E,  R. 
Co,,  E,  B.  &  E.  115  ;  Robinson  v.  Jones,  4  L,  R,  Ir,  391. 

214 


UNNECESSARY  PUBLICITY.  *  241 

not  contain  the  words  defamatory  of  the  plaintiff,  then  the  extent 
given  to  the  announcement  is  evidence  of  malice  to  go  to  the 
jury.i  To  deliberately  give  any  unnecessary  publicity  to  state- 
ments defamatory  of  another,  raises  at  least  a  suspicion  of 
malice,  (a) 

Illustrations. 

Defendant  made  a  speech  at  a  public  meeting  called  to  petition  Parliament,  and 
subsequently  handed  a  copy  of  what  he  had  said  to  the  reporters  for  publication  in  the 
newspapers  ;  such  publication  was  held  to  be  in  excess  of  the  privilege.  Pierce  v.  Ellis, 
6  Ir.  C.  L.  K.  55. 

A  personal  attack  on  the  private  life  and  character  of  a  candidate  at  a  parliamentary 
election,  published  by  a  voter  in  the  newspapers,  is  not  privileged.  "  However  large 
the  privilege  of  electors  may  be,"  said  Lord  Denman,  C.  J.,  "  it  is  extravagant  to  suppose 
that  it  can  justify  the  publication  to  all  the  world  of  facts  injurious  to  a  person  who 
happens  to  stand  in  the  situation  of  a  candidate."  Duncombe  v.  Daniell,  8  C.  &  P. 
222  ;  2  Jur.  32  ;  1  W.  W.  &  H.  101. 

A  letter  sent  to  a  newspaper  by  members  of  the  Town  Council  and  published  there- 
in, charging  certain  contractors  for  the  erection  of  the  Borough  Gaol  with  "  scamping" 
their  work,  is  not  privileged  ;  although  preferring  the  same  charge  at  a  meeting  of  the 
Town  Council  probably  would  have  been.  Simpson  v.  Downs,  16  L.  T.  391.  But  see 
Harle  v.  Catherall,  14  L.  T.  801. 

The  defendant,  the  tenant  of  a  farm,  required  some  repairs  to  be  done  at  his  house  ; 
the  landlord's  agent  sent  up  two  workmen,  the  plaintiff  and  Taylor.  They  made  a  bad 
job  of  it ;  the  plaintiff  undoubtedly  got  drunk  while  on  the  premises  ;  and  the  defendant 
was  convinced  from  what  he  heard  that  the  plaintiff  had  broken  open  his  cellar-door 
and  drunk  his  cider.  Two  days  afterwards  the  defendant  met  the  plaintiff  and  Taylor 
together,  and  charged  the  plaintiff  with  breaking  open  tlie  cellar-door,  getting  drunk, 
and  spoiling  the  job.  He  repeated  this  charge  later  in  the  same  day  to  Taylor  alone 
in  the  absence  of  the  plaintiff,  and  also  to  the  landlord's  agent.  Held,  that  the  com- 
munication to  the  landlord's  agent  was  clearly  privileged,  as  both  were  interested  in 
the  repairs  being  properly  done  ;  that  the  statement  made  to  the  plaintiff  in 
Ta3dor's  presence  was  also  privileged,  if  not  malicious  ;  but  *that  the  repeti-  *  242 
tion  of  the  statement  to  Taylor  in  the  absence  of  the  plaintiff  was  unauthorized 
and  officious,  and  therefore  not  protected,  although  made  in  the  belief  of  its  truth. 
Toogood  V.  Spyring,  1  C.  M.  &  R.  181  ;  4  Tyrw.  582. 

Proof  that  defendant  industriously  circulated  the  libel  will  be  some  evidence  of  mal- 
ice.    Gathercole  v.  Miall,  15  M.  &  W.  319 ;  15  \.  J.  Ex.  179  ;  10  Jur.  337. 

A  shareholder  in  a  railway  company  summoned  a  meeting  of  shareholders,  and  also 
invited  reporters  for  the  press  to  attend.  Charges  which  he  made  at  such  meeting  against 
one  of  the  directors  for  his  conduct  of  the  affairs  of  the  company,  held  not  privileged, 
because  persons  not  shareholders  were  present.     Parsons  v.  Surgey,  4  F.  &  F.  247. 

1  Brown  v.  Croome,  2  Stark,  297;  and  Lay  v.  Lawson,  4  A.  &  E.  795,  overruling 
Delany  v.  Jones,  4  Esp.  191 . 

{a)  But  the  fact  that  the  statement  was  the  privilege.     Hatch  v.  Lane,  105  Mass. 

publislied  before  some  who  were  not  inter-  394;  Brow  v.   Hathaway,  13  Allen,   239  ; 

ested  in  it,  as  in  the  case  of  a  notice  in  a  Toogood  v.  Sjiyring,  1  Cromp.  M.  &  R.  181  ; 

newspaper,  does  not  necessarily  take  away  Shurtletl' j;.  Stevens,  51  Vt.  501,  510. 

215 


*  242  QUALIFIED   PRIVILEGB. 

But  where  the  auditors  of  a  company  reported  that  the  manager's  accounts  were 
hadly  kept,  and  that  there  was  a  large  deficiency  not  accoxmted  for  ;  and  at  the  general 
meeting  this  report  with  others  was  submitted  to  the  shareholders,  and  the  meeting 
resolved  that  they  should  be  printed  and  circulated  among  the  shareholders,  which  -ft-as 
done.  Held  that  the  privilege  attaching  to  such  reports  was  not  lost  merely  by  the 
necessary  publication  of  them  to  the  compositors,  &c.,  in  the  ordinary  course  of  print- 
ing. Lawless  v.  Anglo-Egyptian  Cotton  Co.,  L.  R.  4  Q.  B.  262  ;  10  B.  &  S.  226  ;  38 
L.  J.  Q.  B.  129  ;  17  W.  R.  498.  And  see  Davis  v.  Cutbush  and  others,  1  F.  &  F.  487; 
Lake  v.  King,  1  Lev.  240  ;  1  Saund.  131  ;  Sid.  414  ;  1  Mod.  58. 

The  plaintiff  and  defendant  were  jointly  interested  in  property  in  Scotland,  to  the 
manager  of  which  the  defendant  wrote  a  letter  principally  about  the  property  and  the 
conduct  of  the  plaintiff  with  reference  thereto,  but  also  containing  a  charge  against 
the  plaintiff  with  reference  to  his  conduct  to  his  mother  and  aunt.  Held  that  though  the 
part  of  the  letter  about  the  defendant's  conduct  as  to  the  property  might  be  confidential 
and  privileged,  such  privilege  could  not  extend  to  the  part  of  the  letter  about  the  plain- 
tiffs conduct  to  his  mother  and  aunt.  Warren  v.  WaiTen,  1  C.  M.  &  R.  250  ;  4  Tyr. 
850  ;  Simmonds  ■!;.  Dunne,  Ir.  R.  5  C.  L.  358. 

If  a  clergyman  or  parish  priest,  in  the  course  of  a  sermon,  "  make  an  example"  of 
a  member  of  his  flock  by  commenting  on  his  misconduct,  and  either  naming  him,  or 
alluding  to  him  in  unmistakable  terms,  his  words  will  not  be  privileged,  although 
they  were  uttered  bcmdjidx  in  the  honest  desire  to  reform  the  culprit  and  to  warn  the 
rest  of  his  hearers  ;  and  although  the  congregation  would  probably  be  more  interested 
in  this  part  of  the  discourse  than  in  any  other.  If  the  words  be  actionable,  the  clergy- 
man must  justify,  (a)  Jlagrath  v.  Finn,  Ir.  R.  11  C.  L.  152  ;  Kinnahan  v.  JlcCuUagh, 
lb.  1;  R.  V.  Knight  (1736),  Bacon's  Abr.  A.  2  (Libel);  Gilpin  v.  Fowler,  9  Ex.  615  ; 
23  L.  J.  Ex.  152  ;  18  Jur.  293.  And  see  Greenwood  v.  Prick,  Cro.  Jac,  91,  as  over- 
ruled by  Lord  Denman,  12  A.  &  E.  726,  ante,  p.  6. 


*  243  *  III.  Privileged  Reports. 

(i.)  Reports  of  Judicial  Proceedings. 

Every  impartial  and  accurate  report  of  any  proceeding  in  a 
public  law  court  is  privileged,  unless  the  court  has  itself  pro- 
hibited the  publication,  or  the  subject-matter  of  the  trial  be  unfit 
for  publication.  (5) 

This  rule  applies  to  all  proceedings  in  any  court  of  justice,  su- 
perior or  inferior,  of  record  or  not  of  record.  "  For  this  purpose 
no  distinction  can  be  made  between  a  court  of  piepoudre  and  the 

(a)  As  for  the  public  anathema  and  ex-  berlake,  10  Ohio  St.  548  ;  Storey  v.  Wal- 

communication  of  a  parishioner  by  a  catho-  lace.    60    111.    51.      This   is   trae   in   the 

lie  priest  see  Fitzgerald  v.  Robinson,  112  United  States  of  reports  of  proceedings  be- 

Mass.   371;  Servatius  v.   Pichel,  34  Wis.  fore  inferior  courts,  according  to  McBee  v. 

292.  Fulton,  supra,  denpng  Stanly  i'.  Webb, 

(J)  McBeev.  Fulton,  47  Md.  403;  Stan-  Matthews  v.   Beach,  and  Gazette  Co.  v. 

ly  V.  Webb,   4   Sandf.   21 ;  Matthews  v.  Timberlake,  siqwa ;  perhaps  not  of  coro- 

Beach,  5  Sandf.  256  ;  Gazette  Co.  v.  Tim-  ner's  courts.    See  Storey  v.  Wallace,  supra. 

216 


PEIVILEGED  EEPOETS.  *  243 

House  of  Lords  sitting  as  a  court  of  justice."  ^  And  in  the  case  of 
a  magistrate  or  of  justices  sitting  in  petty  session,  it  is  immaterial 
whether  the  application  be  made  to  them  ex  parte  or  not.  It  ap- 
pears to  be  also  immaterial  whether  the  matter  be  one  over  which 
they  have  jurisdiction  or  not,  and  whether  they  dispose  of  the 
case  finally  or  send  it  for  trial  to  the  assizes. 

The  reason  for  this  privilege  is  thus  stated  by  Lawrence,  J.,  in 
R.  V.  Wright. 2  "  The  general  advantage  to  the  country  in  having 
these  proceedings  made  public  more  than  counterbalances  the  in- 
convenience to  private  persons  whose  conduct  may  be  the  subject 
of  such  proceedings."  Cockburn,  C.J.,  uses  language  almost 
identical  in  Wason  v.  Walter.^ 

It  is  only  since  1878  that  the  law  has  extended  so  wide  an  *im-  *  244 
munity  to  reports  of  proceedings  before  police  magistrates  or  justices 
of  the  peace.  Thus,  while  Lewis  v.  Levy  decided  that  a  report  of  a  pre- 
liminary investigation  before  a  magistrate  was  privileged  if  the  result  was 
that  the  summons  was  dismissed  and  the  person  accused  discharged,  still 
Duncan  v.  Thwaites,*  is  an  express  authority  for  holding  such  a  report  un- 
privileged, if  the  accused  be  ultimately  sent  to  take  his  trial  before  a  jury. 
The  reason  for  the  distinction  is  that  in  the  former  case  the  decision  is 
final,  and  the  investigation  at  an  end ;  in  the  latter  the  examination  was 
preliminary  merely,  and  the  minds  of  the  future  jury  might  he  influenced 
by  the  publication. 

Again,  there  is  an  obvious  distinction  between  an  ex  x>cirte  application, 
Avhere  the  accused  has  no  opportunity  of  defending  himself,  and  a  full  trial 
where  both  parties  address  the  court  by  their  counsel  or  solicitors,  and  call 
what  witnesses  they  please.  There  are  even  dicta  of  certain  eminent  judges 
which  would  seem  to  deny  any  privilege  to  fair  and  accurate  reports  of  ex 
parte  proceedings  in  the  superior  Courts.^  But  Curry  v.  Walter  ^  is  an  ex- 
press decision  that  such  reports  are  privileged,  a  case  which  was  at  one 
time  doubted,  but  is  now  clear  law.  And  now  the  decision  in  Usill  v. 
Hales  settles  the  law,  and  extends  immunity  to  all  bond  fide  and  correct 
reports  of  all  proceedings  in  a  magistrate's  court,  whether  ex  j)arte  or  other- 
wise ;  and  such  cases  as  R.  v.  Lee '''  must  be  considered  to  be  overruled,  in 

1  Per  Lord  Campliell  in  Lewis  v.  Levy,  E.  B.  &  E.  537  ;  27  L.  J.  Q.  B.  2S7  ;  4  Jur. 
N.  S.  970. 

!^  8  T.  R.  298. 

3  L.  R.  4  Q.  B.  87  ;  8  B.  &  S.  730  ;  38  L.  J.  Q.  B.  34  ;  17  W.  R.  169  ;  19  L.  T.  418. 

*  3B.  &C.  556;  5  D.  &  R.  447. 

6  Per  Maule,  J.,  in  Hoare  v.  Silverlock  (No.  2,  1850),  9  C  B.  23  ;  19  L.  J.  C.  P. 
215  ;  and  Abbott,  C.J.,  in  Duncan  v.  Tliwaites,  3  B.  &  C.  556. 

6  1  Bos.  &  P.  525  ;  1  Esp.  456.  7  5  Esp.  123. 

217 


*  244  QUALIFIED  PRIVILEGE. 

SO  far  at  all  events  as  they  lay  down  any  general  rule  to  the  eflfect  that  it 
is  unlawful  to  publish  any  report  of  ex  parte  proceedings. 

A  third  distinction  was  as  to  matters  coram  non  judice.  It  might  well 
be  contended  that  where  a  magistrate  listens  to  a  slanderous  complaint,  and 
gives  some  advice  as  to  a  matter  wholly  outside  his  jurisdiction,  he  is  not 
discharging  any  magisterial  function  nor  acting  in  any  judicial  capacity.  It 
is  as  though  the  conversation  took  place  in  some  private  citizen's  drawing- 
room.  And  to  this  effect  was  the  decision  in  McGregor  v.  Thwaites.-^  But 
this  decision  is  practically  overruled  by  Usill  v.  Hales,  in  which  case 

*  245    Lord  Coleridge  took  *  a  distinction  ^  between  *'  inherent  want  of 

jurisdiction  on  account  of  the  nature  of  the  complaint "  and  "  what 
may  be  called  resulting  want  of  jurisdiction  because  the  facts  do  not  make 
out  the  charge."  His  Lordship  assumed  that  the  application  was  for  a 
summons  or  order  luider  the  Masters  and  Workmen's  Act,  an  application, 
that  is,  which  the  magistrate  would  have  had  jurisdiction  to  grant,  had  the 
facts  when  investigated  proved  to  warrant  such  a  course.  On  that  assump- 
tion, it  follows,  of  course,  that  the  magistrate  had  jurisdiction  to  listen  to 
the  application,  imtil  the  facts  stated  to  him  made  it  clear  that  he  had  no 
power  to  grant  the  redress  applied  for.  But  in  the  libel  there  is  no  word 
as  to  the  Masters  and  "Workmen's  Act ;  it  would  seem  rather  that  the 
applicants  were  desirous  of  inverting  the  usual  order  of  things,  and  of 
prosecuting  their  employer  for  embezzlement,  l^o  doubt  in  this  case  it  was 
the  duty  of  the  magistrate  to  listen  to  the  applicant  until  it  became  clear 
from  what  he  said  that  the  magistrate  had  no  jurisdiction  over  the  subject- 
matter  of  the  complaint.  But  surely  it  is  equally  the  duty  of  the  magis- 
trate so  far  to  listen  to  every  applicant.  And  an  ordinary  newspaper 
reporter  can  hardly  be  exj^ected  to  accurately  distinguish  between  a  magis- 
trate's "inherent  want  of  jurisdiction"  and  that  which  is  merely  "result- 
ing." Lopes,  J.,  on  the  other  hand,  takes  a  broader  ground:  —  "The 
cases,"  he  says,^  "are  clear  to  show  that  want  of  jurisdiction  will  not  take 
away  the  privilege,  if  it  is  maintainable  on  other  grounds."  ^  I  think  we 
may  conclude  that  newspapers  may  safely  report  in  future  everj^thing  that 
takes  place  in  open  court,  even  though  the  magistrate  should  j^rove  to 
have  no  jurisdiction. 

It  is  not  clear,  however,  that  the  case  of  LTsill  v.  Hales  disposes  of  the  first 
distinction  taken  in  Duncan  v.  Thwaites,^that  a  fair  report  of  a  magistrate's 
decision  is  privileged  when  it  finally  disposes  of  the  matter  of  the  application, 
but  is  not  privileged  where  the  inquiry  is  but  a  preliminary  one,  and  the 

1  3  B.  &  C.  24;  4  D.  &  K.  695. 

2  3  C.  P.  D.  3-24.  8  3  c.  P.  D.  329. 

*  Buckley  v.  Wood,   4  Rep.  146  ;  Cro.  Eliz.  230  ;  Lake  v.  King,  1  Saund.   131 ; 
Fairman  v.  Ives,  5  B.  &  Aid.  642. 
6  3  B.  &  C.  556. 

218 


EEPOETS   OF   TKIALS.  *  245 

prisoner  is  committed  to  take  his  trial  at  the  Assizes  or  the  Central  Criminal 
Court.  Lord  Campbell  ^  appears  anxious  not  to  overrule  Duncan 
V.  Thwaites,  on  this  point  at  *  all  events  :  for  he  is  careful  to  lay  down  2ti.o 
the  rule  that  the  privilege  attaching  to  fair  and  correct  reports  of 
proceedings  taking  place  in  a  public  Court  of  Justice,  "  extends  to  proceed- 
ings taking  place  publicly  before  a  magistrate  on  the  preliminary  investiga- 
tion of  a  criminal  charge  terminating  in  the  discharge  hy  the  magistrate  of 
the  party  charged.''''  In  Usill  and  Hales  the  matter  was  finally  disposed  of 
by  the  magistrate  ;  it  was  unnecessary  therefore  for  the  Court  to  decide  the 
point.  But  the  whole  spirit  of  the  decision  is  against  this  time-honored 
distinction.  Lord  Coleridge  frankly  admits  (p.  325)  :  —  "I  do  not  doubt 
for  my  own  part  that  if  this  argument  had  been  addressed  to  a  Court  some 
sixty  or  seventy  years  ago,  it  might  have  met  with  a  different  result  from 
that  which  it  is  about  to  meet  with  to-day."  And  then  after  referring  to 
E.  V.  Fleet  ^  and  Duncan  v.  Thwaites,  the  learned  judge  continues  :  —  "  But 
we  are  not  now  living,  so  to  say,  within  the  shadow  of  those  cases."  And 
his  Lordship  quotes  a  passage  from  the  judgment  of  the  Court  of  Queen's 
Bench,  in  the  case  of  Wason  v.  Walter,^  as  '•  a  passage  which  upon  the 
whole  I  should  desire  to  adopt  and  adhere  to  :  — '  Whatever  disadvantages 
attach  to  a  system  of  unwritten  law,  —  and  of  these  we  are  fully  sensible, 
—  it  has  at  least  this  advantage,  that  its  elasticity  enables  those  who  ad- 
minister it  to  adapt  it  to  the  varying  conditions  of  society  and  to  the 
requirements  and  habits  of  the  age  in  which  we  live,  so  as  to  avoid  the 
inconveniences  and  injustice  which  arise  where  the  law  is  no  longer  in  har- 
mony with  the  wants  and  usages  and  interests  of  the  generation  to  which 
it  is  immediately  applied.  Our  law  of  libel  has  in  many  respects  only 
gradually  developed  itself  into  anything  like  satisfactory  and  settled  form. 
The  full  liberty  of  public  writers  to  comment  on  the  conduct  and  motives 
of  public  men  has  only  in  very  recent  times  been  recognized.  .  .  .  Even  in 
quite  recent  days  judges,  in  holding  the  publication  of  the  proceedings  of 
Courts  of  Justice  lawful,  have  thought  it  necessary  to  distinguish  what  we 
call  ex  parte  proceedings  as  a  probable  exception  from  the  operation  of  tlie 
rule.  Yet  ex  2>arte  proceedings  before  magistrates,  and  even  before  this 
Court,  as,  for  instance,  on  applications  for  criminal  informations,  are  pub- 
lished every  day  ;  but  such  a  thing  as  an  action  or  indictment  founded 
on  a  report  of  such  an  ex  parte  proceeding  is  unheard  of ;  and 
*  if  any  such  action  or  indictment  should  be  brought,  it  would  -"*  • 
probably  be  held  that  the  true  criterion  of  the  privilege  is  not 
whether  the  report  was  or  was  not  ex  parte,  but  whether  it  was  a  fair  and 
honest  report  of  what  had  taken  place,  published  simply  with  a  view  to  the 

1  In  Lewis  v.  Levy,  E.  B.  &  E.  561  ;  27  L.  J.  (Q.  B. )  290. 

2  1  B,  &  Aid.  379.  8  L.  R.  4  Q.  B.  93. 

219 


*  247  QUALIFIED  PRIVILEGE. 

information  of  the  puLlic,  and  innocent  of  all  intention  to  do  injury  to  the 
reputation  of  the  party  affected.' "  ^  Applying  a  similar  argument,  "^'e  know 
that  reports  of  all  proceedings  before  magistrates  are  published  daily  with 
impunity,  whether  such  proceedings  are  finally  disposed  of  by  the  magis- 
trate, or  whether  the  case  is  hereafter  to  come  before  a  jury.  Lopes,  J., 
intimates  that  he  thinks  it  doubtful  how  far  the  old  authorities  on  this 
point  might  be  followed  in  the  present  day.^  I  think,  therefore,  that  if  it 
is  not  already  the  law,  it  soon  will  be  the  law,  that  a  newspaper  reporter 
may  report  everything  that  occurs  publicly  in  open  court  without  fear  of  any 
action,  provided  only  that  his  reports  are  fair  and  accurate,  and  not  inter- 
spersed with  comments  of  his  own.  "  The  law  upon  such  a  subject  must 
bend  to  the  approved  usages  of  society,  though  still  resting  upon  the  same 
principle,  that  what  is  hurtful  and  indicates  malice  should  be  punished, 
and  that  what  is  beneficial  and  bond  fide  should  be  protected."  ^ 


lUtistrations. 

The  following  passage  appeared  in  the  Daily  News,  the  Standard,  and  the  Morning 
Advertiser,  on  the  same  morning: —  "Three  gentlemen,  civil  engineers,  were  among 
the  applicants  to  the  magistrate  yesterday,  and  they  applied  for  criminal  process  against 
Mr.  Usill,  a  civil  engineer  of  Great  Queen  Street,  Westminster.  The  spokesman  stated 
that  they  had  been  engaged  in  the  survey  of  an  ]  rish  railway  by  Mr.  Usill,  and  had 
not  been  paid  what  they  had  earned  in  their  various  capacities,  although  from  time  to 
time  they  had  received  small  sums  on  account ;  and,  as  the  person  complained  of  had 
been  paid,  they  considered  that  he  had  been  guilty  of  a  criminal  oflence  in  withholding 
their  money.  Mr.  Woolrych  said  it  was  a  matter  of  contract  between  the  parties  ;  and, 
although  on  the  face  of  the  application,  they  had  been  badly  treated,  he  must  refer 
them  to  the  County  Court."  Mr.  Usill  thereupon  brought  an  action  against  the  pro- 
prietor of  each  newspaper.  The  three  actions  were  tried  together  before  Cockbum,  C.J., 
at  Westminster,  on  November  15th,  1877.     The  learned  judge  told  the  jurj'  that  the 

only  question  for  their  consideration  was  whether  or  not  the  publication  com- 
*  248    plained  of  was  a  fair  and  impartial  report  of  what  took  place  before  *  the 

magistrate ;  and  that,  if  they  found  that  it  was  so,  the  publication  was 
privileged.  The  jury  found  that  it  was  a  fair  report  of  what  occurred,  and  accordingly 
returaed  a  verdict  for  the  defendant  in  each  case.  Held  that  the  report  was  privileged, 
although  the  proceedings  were  ex  parte,  and  although  the  magistrate  decided  that  he 
had  no  jurisdiction  over  the  matter.  UsiU  v.  Hales,  3  C.  P.  D.  319 ;  47  L.  J.  C.  P. 
323  ;  26  W.  R.  371 ;  38  L.  T.  63  ;  Usill  v.  Brearley,  ih. ;  Usill  v.  Clarke,  ib.  See 
McGregor  v.  Thwaites,  3  B.  &  C.  24. 

■  Where  judicial  proceedings  last  more  than  one  day,  and  their  publication  is  not 
expressly  forbidden  by  the  Court,  a  report  published  in  a  newspaper  every  morning  of 
the  proceedings  of  the  preceding  day,  is  privileged,  if  fah  and  accurate  ;  but  all  com- 

1  L.  R.  4  Q.  B.  94  ;  3  C.  P.  D.  326. 

2  3  C.  P.  D.  329. 

3  Per  Lord  Campbell,  C.J.,  m  Lewis  v.  Levy,  E.  B.  &  E.  560  ;  27  L.  J.  Q.  B.  282  ; 
4  Jur.  N.  S.  970. 

220 


PEOHIBITED    EEPORTS.  *  248 

ment  on  the  case  must  be  suspended  till  tlie  proceedings  terminate.     Lewis  v.  Le^y, 
E.  B.  &  E.  537  ;  27  L.  J.  Q.  B.  282  ;  4  Jur.  N.  S.  970. 

A  report  of  proceedings  before  a  judge  at  chambers  on  an  application  under  5  &  6 
Vict.  c.  122,  s.  42,  to  discharge  a  bankrupt  out  of  custody,  is  privileged.  Smith  v. 
Scott,  2  C.  &  K.  580. 

Proceedings  held  in  gaol  before  a  registrar  in  bankruptcy,  under  the  Bankruptcy 
Act,  1861,  ss.  101,  102,  upon  the  examination  of  a  debtor  in  custody,  are  judicial  and 
in  a  public  Court.  A  fair  report,  therefore,  of  those  proceedings  is  protected.  P»yalls  v. 
Leader  and  others,  L.  R.  1  Ex.  296  ;  12  Jur.  N.  S.  503  ;  4  H.  &  C.  555  ;  35  L.  J.  Ex. 
185  ;  14  W.  R.  838  ;  14  L.  T.  563. 

A  fair  and  accurate  report  of  proceedings  before  the  examiners  appointed  under  9 
Geo.  IV.  c.  22,  s.  7,  to  inquire  into  the  sufficiency  of  the  sureties  offered  on  the  trial  of 
an  election  petition,  was  held  privileged.  Cooper  v.  Lawson,  8  A.  &  E.  746  ;  1  W.  W. 
&  H.  601 ;  2  Jur.  919  ;  1  P.  &  D.  15. 

The  defendants  presented  a  petition  in  the  Croydon  County  Court  to  adjudicate  the 
plaintiff  a  bankrupt ;  and  to  set  aside  a  bill  of  sale  which  they  alleged  to  be  fraudulent. 
The  County  Court  judge  did  not  hear  the  case  in  open  Court,  but  in  his  own  room ;  the 
public,  however,  could  walk  in  and  out  of  the  room  at  their  pleasure  during  the  hearing. 
Held,  by  Cockburn,  C.J.,  at  Nisi  Prius  that  a  fair  report  of  what  took  place  before  the 
County  Court  judge  in  his  room  was  2^ri»ut  facie  privileged.  Myers  v.  Defries,  Times, 
July  23rd,  1877. 

In  Scotland  there  exists  a  public  register  of  protested  bills  of  exchange,  established 
by  statute,  and  the  registration  of  such  protests  has  by  statute  the  effect  of  a  "  decreet," 
or  fiual  judgment  of  the  Court  of  Session.  The  contents  of  this  register  being  public 
property,  the  defendant  published  an  accurate  transcript  thereof  for  the  benefit  of 
merchants.  Tlus  was  held  privileged,  as  being  but  a  list  of  judgments  of  the  Court. 
Fleming  v.  Newton,  1  H.  L.  C.  363. 

*But  where  the  publisher  of  such  a  "Black  List"  left  in  it,  as  a  still    *  249 
existing  liability,  a  judgment  which  had  been  annulled  and  satisfied  by  pay- 
ment, the  Irish  Court  of  Queen's  Bench  held  that  this  inaccuracy  destroj-ed  all  priv- 
ilege.    McNally  v.   Oldham,   16  Ir.   C.   L.  R.  298  ;  8  L.  T.  604.     And  see  Jones  v. 
McGovern,  Ir.  R.  1  C.  L.  681  ;  Cosgrave  v.  Trade  Auxiliary  Co.,  Ir.  R.  8  C.  L.  349. 

There  are  however  two  cases  in  which  reports  of  judicial  pro- 
ceedings, although  fair  and  accurate,  are  not  privileged,  and  are 
indeed  illegal. 

(i.)  The  first  is  where  the  Court  has  itself  prohibited  the  pub- 
lication, as  it  frequently  did  in  former  daj's.  "  Every  court  has 
the  power  of  preventing  the  publication  of  its  proceedings  pending 
litigation."  ^     But  such  a  prohibition  now  is  rare.^ 

(ii.)  The  second  is  where  the  subject-matter  of  the  trial  is  an 
obscene  or  blasphemous  libel,  or  where  for  any  other  reason  the 
proceedings  are  unfit  for  publication.  It  is  not  justifiable  to 
publish  even  a  fair  and  accurate  report  of  such  proceedings:  for 
such  report  may  itself  be  indictable  as  a  criminal  libel. 

1  Per  Turner,  L.  J.,  in  Brook  v.  Evans,  29  L.  J.  Ch.  616  ;  6  Jur.  N.  S.  1025  ;  8 
W.  R.  688. 

2  And  see  Levy  v.  Lawson,  E.  B.  &  E.  560  ;  27  L.  J.  Q.  B.  282. 

221 


*  249  QUALIFIED   PRIVILEGE.  ; 

Illustrations. 

On  the  trial  of  Thistlewood  and  others  for  treason,  in  1820,  Abbott,  C.J.,  announced 
in  open  court  that  he  prohibited  the  publication  of  any  of  the  proceedings  until  the 
trial  of  all  the  prisoners  should  be  concluded.  In  spite  of  this  prohibition,  the  Ob- 
server published  a  report  of  the  trial  of  the  first  two  prisoners  tried.  The  proprietor 
of  the  Observer  was  summoned  for  the  contempt,  and  failing  to  appear,  was  fined  £500. 
R.  V.  Clement,  4  B.  &  Aid.  218. 

Kichard  Carlile  on  his  trial  read  over  to  the  juiy  the  whole  of  Paine's  "  Age  of 
Reason,"  for  selling  which  he  was  indicted.  After  his  conviction,  his  wife  published  a 
full,  true,  and  accurate  account  of  his  trial,  entitled  "  The  Mock  Trial  of  Jlr.  Car- 
lile," and  in  so  doing  republished  the  whole  of  the  "Age  of  Reason"  as  a  part  of  tlie 
proceedings  at  the  trial.  Held  that  the  privilege  usually  attaching  to  fair 
*  250  reports  of  judicial  proceedings  did  *not  extend  to  such  a  colorable  reproduc- 
tion of  a  blasphemous  book  ;  and  that  it  is  unlawful  to  publish  even  a  correct 
account  of  the  proceedings  in  a  court  of  justice,  if  such  an  account  contain  matter  of  a 
scandalous,  blasphemous,  or  indecent  nature.  R.  v.  Mary  Carlile  (1819),  3  B.  &  Aid. 
167.     See  also  the  remarks  of  Bayley,  J.,  in  R.  v.  Creevey,  1  M.  &  S.  281. 

The  Protestant  Electoral  Union  published  a  book,  called  "The  Confessional  Un- 
masked," intended  to  show  the  pernicious  influence  exercised  by  Roman  Catholic 
priests  in  the  confessional  over  the  minds  and  consciences  of  the  laity.  This  was  con- 
demned as  obscene  in  R.  v.  Hicklin,  L.  R.  3  Q.  B.  360 ;  37  L.  J.  M.  C.  89  ; 
16  W.  R.  801  ;  18  L.  T.  395  ;  11  Cox,  C.  C.  19.  The  Union  thereupon  issued  an 
expurgated  edition,  for  selling  which  one  George  Mackey  was  tried  at  the  Winchester 
Quarter  Sessions  on  Oct.  19th,  1870,  when  the  jury,  being  unable  to  agree  as  to  the 
obscenity  of  the  book,  were  discharged  without  giving  any  verdict.  The  Union  there- 
upon published  "A  Report  of  the  Trial  of  George  Mackey,"  in  which  they  set  out  the 
full  text  of  the  second  edition  of  "The  Confessional  Unmasked  ; "  although  it  had  not 
been  read  in  open  court,  but  only  taken  as  read,  and  certain  passages  in  it  referred  to. 
A  police  magistrate  thereupon  ordered  all  copies  of  this  "Report  of  the  Trial  of 
George  Mackey  "  to  be  seized  and  destroyed  as  obscene  books.  Held  that  his  decision 
was  correct.  Steele  v.  Brannan,  L.  R.  7  C.  P.  261  ;  41  L.  J.  M.  C.  85  ;  20  W.  R. 
■607  ;  26  L.  T.  509. 

The  report  must  be  an  impartial  and  accurate  account  of  what 
Teally  occurred  at  the  trial  ;  else  no  privilege  will  attach.  It  is 
the  duty  of  the  judge  to  exclude  irrelevant  evidence  ;  if  there- 
fore such  evidence  be  given  in  court  and  appear  in  the  report, 
this  is  not  the  fault  of  the  reporter.^  The  sworn  evidence  of  the 
witnesses  should  be  relied  on,  rather  than  the  speeches  of  advo- 
cates. Counsel  are  frequently  instructed  to  open  to  the  jury 
facts  which  they  fail  to  prove  in  evidence.  If  such  an  unsub- 
stantiated statement  be  reported  at  all,  the  reporter  should  add, 
"  but  this  the  plaintiff  failed  to  prove :  "  but  it  would  be  better 
to  avoid  all  allusion  to  the  matter.  Especial  care  should  be 
taken  to  report  accurately  the  summing  up  of  the  learned  judge, 

1  Ryalls  V.  Leader,   L.  R.  1  Ex.  300 ;  35  L.  J.  Ex.  185  ;  14  W.  R.  838  ;  12  Jur. 

N.  S.  503  ;  14  L.  T.  r.63. 
990 


FAIR   ABSTEACT.  *  250 

especiall}^  if  the  case  be  of  more  than  transitory  interest. 

In  many  cases  a  *  report  has  escaped  the  charge  of  par-    *  251 

tiality  on  the  ground  that  it  contained  an  accurate  report 

of  the  judge's  summing  up  of  tlie  case  to  the  jury.^ 

Of  course  the  report  need  not  be  verbatim  ;  it  may  be  abridged 
or  condensed ;  but  it  must  not  be  partial  or  garbled.  It  need 
not  state  all  that  occurred  in  extenso ;  but  if  it  omit  any  fact 
which  would  have  told  in  the  plaintiff's  favor,  it  will  be  a  ques- 
tion for  the  jury  whether  the  omission  is  material.  Thus  the 
entire  suppression  of  the  evidence  of  one  witnCvSs  may  render  the 
report  unfair.'^  But  a  report  will  be  privileged  if  it  is  "  substan- 
tialhj  a  fair  account  of  what  took  place  "  in  court.^  "  It  is  suffi- 
cient to  publish  a  fair  abstract."  * 

The  privilege  is  not  confined  to  reports  in  a  newspaper  or  law 
magazine.  It  attaches  equally  to  fair  and  accurate  reports  issued 
for  any  lawful  reason  in  pamphlet  form  or  in  any  other  fashion. 
Though  of  course  if  there  be  any  other  evidence  of  malice,  the 
mode  and  extent  of  publication  will  be  taken  into  consideration 
with  such  other  evidence  on  that  issue.^ 

Nor  does  it  matter  by  whom  the  report  is  published ;  the 
privilege  is  the  same,  as  a  matter  of  law,  for  a  private  individual 
as  for  a  newspaper.^  "  I  do  not  think  the  public  press  has  any 
peculiar  privilege." ' 

If  a  publication  purports  to  be  a  report  of  a  trial,  it  will,  it 
seems,  be  assumed  in  favor  of  the  defendant  that  such 
a  trial  reall}-  took  place  :  unless  the  plaintiff  *  adduces  *  252 
some  evidence  to  the  contrary.  "  We  cannot  suppose, 
without  proof,  that  the  occurrence  of  such  a  trial  was  mere 
invention,  or  that  newspapers  publish  reports  of  merely  imagi- 
nary trials."  ^ 

Where  the  report  is  clearly  absolutely  fair  and  there  is  no 

1  Rmissich  V.  Lloyds,  46  L.  J.  C.  P.  404  ;  36  L.  T.  423  ;  Chalmers  v.  Payne,  2  C. 
M.  &  R.  156  ;  5  Tyrw.  766  ;  1  Gale,  69. 

2  Duncan  v.  Thwaites,  3  B.  &  C.  580. 

8  Per  Lord  Campbell,  C.  J.,  in  Andrews  v.  Chapman,  3  C.  &  K.  289. 
*  Per  Mellish,  L.  J.,  in  Milissich  v.  Lloyds,  46  L.  J.  C.  P.  405  ;  per  Byles,  J.,  in 
Turner  v.  Sullivan  and  others,  6  L.  T.  130. 

5  Milissich  v.  Lloyds,  46  L.  J.  C.  P.  404  ;  Salmon  v.  Isaac,  20  L.  T.  885. 

6  Per  Brett,  L.  J.,  46  L.  J«  C.  P.  407. 
'  Per  Bramwell,  L.J.,  5  Ex.  D.  56. 

8  PerAldersou,  B.,  in  Chalmers  v.  Payne,  5  Tyrw.  769;  2  C.  M.  &  R.  159;  1 
Gale,  69. 

223 


*  252  QUALIFIED   PRIVILEGE. 

suggestion  of  malice,  the  judge  should  stop  the  case  and.  direct  a 
verdict  for  the  defendant:  e.g.  where  the  report  is  verbatim  or 
nearly  so  ;  or  corresponds  in  all  material  particulars  with  a  report 
taken  by  an  impartial  shorthand  writer.^  But  if  anything  be 
omitted  in  the  report  which  could  make  any  appreciable  differ- 
ence in  the  plaintiff's  favor,  or  anything  erroneously  inserted 
which  could  conceivably  tell  against  him,  then  it  is  a  question 
for  the  jury  whether  such  deviations  from  absolute  accuracy 
make  the  report  unfair  ;  and  the  judge  at  Nisi  Prius  should  not 
direct  a  verdict  for  either  party .^  The  jury  in  considering  the 
question  should  not  dwell  too  much  on  isolated  passages  :  they 
should  consider  the  report  as  a  whole.  They  should  ask  them- 
selves what  impression  would  be  made  on  the  mind  of  an 
unprejudiced  reader  who  reads  the  report  straight  through, 
knowing  nothing  about  the  case  beforehand.  Slight  errors  may 
easily  occur ;  and  if  such  errors  do  not  substantially  alter  the 
impression  of  the  matter  which  the  ordinary  reader  would 
receive,  the  jury  should  find  for  the  defendant.  If  however 
there  is  a  substantial  misstatement  of  any  material  fact,  and  such 
misstatement  is  prejudicial  to  the  reputation  of  the  plaintiff,  then 
the  report  is  unfair  and  inaccurate,  and  the  jury  should  find  for 
the  plaintiff. 

*  253  *  Illustrations. 

In  a  former  action  for  libel  brought  by  the  plaintiff,  the  then  defendant  had  justi- 
fied. The  report  of  this  trial  set  out  the  libel  in  full,  and  gave  the  evidence  for  the 
defendant  on  the  justification,  concluding  however  by  stating  that  the  plaintiff  had  a 
yerdict  for  £30.  The  jury,  under  the  direction  of  Lord  Abinger,  took  the  "bane" 
and  the  "antidote"  together  and  found  a  verdict  for  the  defendant,  on  the  ground 
that  the  report  when  taken  altogether  was  not  injurious  to  the  plaintiff.  And  the 
Court  refused  a  rule  for  a  new  trial.  Chalmers  v.  Payne,  5  Tyrw.  766  ;  1  Gale,  69  ; 
2  C.  M.  &  R.  156  ;  Dicas  v.  Lawson,  ib. 

The  plaintiff  and  M.  were  convicted  of  a  conspiracy  to  extort  money  from  B. ;  the 
report  of  the  trial  stated  that  the  plaintiff  had  written  a  particular  letter,  which  the 
plaintiff  contended  had  not  in  fact  been  written  by  him,  but  by  his  fellow-conspirator, 
M.  Held,  that  as  the  jury  had  convicted  them  of  a  common  purpose,  and  the  letter 
was  written  in  furtherance  of  that  common  purpose  and  set  out  in  the  indictment  as 
an  overt  act  of  the  conspiracy,  it  made  no  difference  which  of  the  two  wrote  it  :  and 
that  the  error,  if  error  it  were,  was  immaterial.  Stockdale  v.  Tarte  and  others,  4  A. 
&  E.  1016  ;  Alexander  v.  N.  E.  R.  Co.,  6  B.  &  S.  340  ;  34  L.  J.  Q.  B.  152  ;  13  W.  R. 
651  ;  11  Jur.  N.  S.  619. 

1  Per  Brett,  L.J.,  in  Milissich  v.  Lloyds,  46  L.  J.  C.  P.  407. 

2  Risk  Allah  Bey  v.  Whitehurst  and  others,  18  L.  T.  615  ;  Street  v.  Licensed 
Victuallers  Society,  22  W.  R.  553. 

224 


NO   COMMENTS.  *  253 

A  baiTister,  editing  a  book  ou  the  Law  of  Attorneys,  referred  to  a  case,  Re  Blake, 
reported  in  30  L.  J.  Q.  B.  32,  and  stated  that  Mr.  Blake  was  struck  off  the  rolls  for 
misconduct.  He  was  in  fact  only  suspended  for  two  years,  as  appeared  from  the  Law 
Journal  report.  The  publishers  were  held  liable  for  this  carelessness,  although  of 
course  neither  they  nor  the  writer  bore  Mr.  Blake  any  malice.  Damages,  £100. 
Blake  v.  Stevens  and  others,  4  F.  &  F.  232  ;  11  L.  T.  543  ;  Gwynn  v.  S.  E.  R.  Co., 
18  L.  T.  738  ;  Biggs  v.  G.  E.  R.  Co.,  16  W.  R.  908  ;  18  L.  T.  482  ;  R.  v.  Lofeild, 
2  Barnard,  128. 

Where  the  report  of  a  trial  gave  none  of  the  evidence,  but  only  an  abridgment  of 
the  speeches  of  counsel,  and  the  defendant  pleaded  that  it  was  still,  in  substance,  a 
true  report  of  the  trial ;  such  plea  was  held  bad  on  demurrer.  Flint  v.  Pike,  4  B.  & 
Cr.  473  ;  6  D.  &  R.  528  ;  Kane  v.  Mulvany,  Ir.  R.  2  C.  L.  402. 

A  report  is  not  privileged  which  does  not  give  the  evidence,  but  merely  sets  out  the 
circumstances  "as  stated  by  the  counsel"  for  one  party.  Saunders  v.  Mills,  6  Bing. 
213  ;  3  M.  &  P.  520  ;  Woodgate  v.  Ridout,  4  F.  &  F.  202. 

Still  less  will  it  be  privileged,  if  after  so  stating  the  case  the  only  account  given  of 
the  evidence,  is  that  the  witnesses  "proved  all  that  had  been  stated  by  the  counsel  for 
the  prosecution."     Lewis  v.  Walter,  4  B.  &  Aid.  605. 

*  Where  a  report  iii  the  Times  of  a  preliminary  investigation  before  a  mag-  Lo4 
istrate  set  out  at  length  the  opening  of  the  counsel  for  the  prosecution,  but 
entirely  omitted  the  examination  and  cross-examination  of  the  prosecutor,  the  only 
witness,  merely  saying  that  "his  testimony  supported  the  statement  of  his  counsel," 
the  jury  found  a  verdict  for  the  plaintiff.  Damages,  £10.  Piaero  v.  Goodlake,  15 
L.  T.  676. 

[N.B.  —  The  headnote  to  this  case  is  strangely  misleading;  the  proceedings  were 
not  ex  parte ;  the  defendant,  himself  a  solicitor,  was  present  and  cross-examined  the 
witnesses.  The  important  monosyllable  "no"  appears  to  be  omitted  in  the  report  of 
the  argument  of  Coleridge,  Q.C.  p.  677.] 

Where  the  report  of  a  criminal  trial  gave  the  speech  for  the  prosecution,  a  brief 
resume  of  the  speech  of  the  prisoner's  counsel,  who  called  no  witnesses,  and  the  whole  of 
the  Lord  Chief  Baron's  summing  up  in  extenso ;  but  it  did  not  give  the  evidence  except 
in  so  far  as  it  was  detailed  in  the  judge's  summing  up  ;  Lord  Coleridge,  C.J.,  held  the 
report  necessarily  unfair  because  incomplete,  and  refused  to  leave  the  question  of  fair- 
ness to  the  jury.  But  the  Court  of  Appeal  held  that  he  was  wrong  in  so  doing  ;  that 
it  is  sufficient  to  publish  a  fair  abstract  of  the  trial,  and  that  the  judge's  summing  up 
was  presumably  such  an  abstract ;  that  the  question  of  fairness  must  be  left  to  the 
jury,  and  that  therefore  there  must  be  a  new  trial.  Milissich  v.  Lloyds  (C.  A.),  46 
L.  J.  C.  P.  404  ;  36  L.  T.  423  ;  13  Cox,  C.  C.  575. 

No  privilege  attaches  to  tlie  re[iort  of  unsworn  statements  made  by  a  bystander  at 
an  inquest.     Lynam  v.  Gowiug,  6  L.  R.  Ir.  259. 

The  reporter  must  add  nothing  of  his  own.  He  must  not 
state  his  opinion  of  the  conduct  of  the  parties,  or  impute  motives 
therefor:  above  all  he  must  not  insinuate  that  a  particular  wit- 
ness committed  perjury.  This  is  not  a  report  of  what  occurred; 
it  is  the  comment  of  the  writer  on  what  occurred,  and  to  this  no 
privilege  attaches,  (a)     Often  no  doubt  such  comments  may  be 

(a)  Commonwealth  v.  Blanding,  3  Pick.  304  ;  Thomas  v.  Croswell,  7  Johns.  264. 

15  225 


*  254  QUALIFIED   PRIVILEGE. 

justified  on  another  ground,  that  they  are  fair  and  bond  fide 
criticism  on  a  matter  of  public  interest  and  are  therefore  not 
libellous.^  But  such  observations,  to  which  quite  different  con- 
siderations apply,  should  not  be  mixed  up  with  the  history  of  the 
case.  "  If  any  comments  are  made,  they  should  not  be  made  as 
part  of  the  report.      The  report  should  be  confined  to 

*  255    what  takes  *  place  in  court,  and  the  two  things,  report 

and  comment,  should  be  kept  separate."  ^  And  all  sensa- 
tional headings  to  reports  should  be  avoided. 

Illustrations. 

The  captain  of  a  vessel  was  charged  before  a  magistrate  with  an  indecent  assault 
upon  a  lady  on  board  his  own  ship.  The  defendant's  newspaper  published  a  report  of 
the  case,  interspersed  with  comments  which  assumed  tlie  guilt  of  the  captain,  com- 
mended the  conduct  of  the  lady  and  generally  tended  to  inflame  the  minds  of  the 
public  violently  against  the  accused.  Held  that  no  privilege  attached  to  such  com- 
ments and  that  the  report  was  neither  fair  nor  dispassionate.  R.  v.  Fisher  and  others, 
2  Camp.  563.     And  see  R.  v.  Lee,  5  Esp.  123  ;  R.  v.  Fleet,  1  B.  &  Aid.  379. 

It  is  libellous  to  publish  a  highly-colored  account  of  criminal  proceedings,  mixed 
with  the  reporter's  own  observations  and  conclusions  upon  what  passed  in  court,  headed 
"Judicial  Delinquency,"  and  containing  an  insinuation  that  the  plaintiff  ("our  hero") 
had  committed  perjury  :  and  it  is  no  justitication  to  pick  out  such  parts  of  the  libel  as 
contain  an  account  of  the  trial,  and  to  plead  that  such  parts  are  true  and  accurate, 
leaving  the  extraneous  matter  altogether  unjustified.  Stiles  v.  Nokes,  7  East,  493  ; 
same  case  sub  nomine  Carr  v.  Jones,  3  Smith,  491. 

The  report  of  a  trial  set  out  the  speech  of  the  counsel  for  the  prosecution,  and  then 
added  :  —  "  The  first  witness  was  R.  P.,  who  proved  all  that  had  been  stated  by  the 
counsel  for  the  prosecution  : "  but  owing  to  the  absence  of  a  piece  of  formal  evidence 
in  noway  bearing  on  the  merits  of  the  case,  "the  jury,  under  the  direction  of  the 
learned  judge,  were  obliged  to  give  a  verdict  of  acquittal,  to  the  great  regret  of  a 
crowded  court,  on  whom  the  statement  and  the  evidence,  so  far  as  it  went,  made 
a  strong  impression  of  their  guilt."  Held  that  no  privilege  applied.  Lewis  v.  Walter, 
4  B.  &  Aid.  605  ;  Roberts  v.  Brown,  10  Bing.  519  ;  4  Moo.  &  Sc.  407. 

On  an  examination  into  the  sufficiency  of  sureties  on  an  election  petition,  under 
9  Geo.  IV.  c.  22,  s.  7,  affida\'its  were  put  in  to  show  that  one  of  them  (the  plaintiff) 
was  embarrassed  in  his  affairs,  and  an  insufficient  surety.  A  newspaper  report  of  the 
examination  proceeded  to  ask  why  the  plaintifiF  being  wholly  unconnected  with  the 
borough  should  take  so  much  trouble  about  the  matter.  "There  can  be  but  one 
answer  to  these  very  natural  and  reasonable  queries,  he  is  hired  for  the  occasion." 
Held  that  this  question  and  answer  formed  no  part  of  the  report  ;  and  therefore 

*  256    enjoyed  no  privilege  ;  and  that  it  was  properly  left  to  the  jury  to  say  *  whether 

thev  were  a  fair  and  hand  fide  comment  on  a  matter  of  public  interest  in  that 
borough.  Verdict  for  the  plaintiff.  Damages,  £100.  Cooper  v.  Lawson,  8  A.  &  K 
746  :  1  W.  W.  &  H.  601  ;  2  Jul-.  919  ;  1  P.  &  D.  15. 

1  See  ante,  c.  II.  pp.  44-46. 

2  Per  Ld.  Campbell,  C.J.,  in  Andrews  v.  Chapman,  3  C.  &  K.  288. 

226 


MALICIOUS  EEPORTS.  *  256 

The  Observer  gave  a  tree  and  faithful  account  of  some  proceedings  in  the  Insolvent 
Debtors  Court,  but  headed  it  with  the  words  "Shameful  conduct  of  an  attorney." 
Held  that  for  those  words,  as  they  were  not  justified,  the  plaintiff  was  entitled  to 
recover.  Clement  v.  Lewis  (Exch.  Ch. ),  3  Br.  &  B.  297  ;  3  B.  &  Aid.  702  ;  7  Moore, 
200  ;  Bishop  v.  Latimer,  4  L.  T.  775. 

A  paragraph  was  headed  "An  honest  lawyer,"  and  stated  that  the  plaintiff  had  been 
reprimanded  by  one  of  the  Masters  of  the  Queen's  Bench,  "for  what  is  called  sharp 
practice  in  his  profession."  Held  libellous.  Boydell  v.  Jones,  4  M.  &  W,  446  ;  1  H. 
&  H.  408  ;  7  Dowl.  210 ;  Flint  v.  Pike,  4  B.  &  C.  473  ;  6  D.  &  R.  528. 

A  report  of  the  hearing  of  a  charge  of  perjuiy  before  a  magistrate,  was  headed 
"  Wilful  and  Corrupt  Perjury,"  and  stated  that  the  "evidence  before  the  magistrate 
entirely  negatived  the  story  of  the  "  plaintiff.  The  jury  found  a  verdict  for  the  de- 
fendant on  the  ground  that  it  was  a  fair  and  correct  report  of  what  occurred  at  the 
hearing.  But  the  Court  set  aside  the  verdict  on  this  count,  aud  entered  a  verdict  for 
the  plaintiff,  with  nominal  damages,  Lewis  v.  Levy,  E.  B.  &  E.  537  ;  27  L.  J.  Q.  B. 
282  ;  4  Jur.  N.  S.  970. 

The  privilege  attaching  to  fair  and  accurate  reports  may  of 
course  be  rebutted  by  proof  of  actual  malice.  Reports  of  judi- 
cial proceedings  are  not  absolutely  piivileged,  by  whomsoever 
published.  1  But  it  is  of  course  very  difficult  to  prove  that  an 
ordinary  newspaper  reporter  has  been  actuated  by  express  mal- 
ice :  whereas  if  one  of  the  parties  to  a  cause  or  his  solicitor  sent 
the  report,  this  unusual  conduct  alone  would  be  some  evidence 
of  malice,  and  the  jury  would  start  with  a  presumption  that  the 
report  was  biassed  and  unfair.^ 

In  these  cases  there  are  in  fact  two  distinct  questions  for  the 
*jury.  (i.)  Is  the  report  fair  and  accurate?  If  so,  it  is  2^rimd  *  257 
facie  privileged ;  if  not  verdict  for  the  plaintiff,  (ii.)  Was  the 
report,  though  fair  and  accurate,  published  maliciously  ]  "Was  it  published 
solely  to  afford  information  to  the  public  and  for  the  benefit  of  society 
without  any  reference  to  the  individuals  concerned ;  or  was  it  published 
with  the  maHcious  intention  of  injuring  the  reputation  of  the  plaintiff? 
This  second  question  of  course  only  arises  when  the  first  has  been  already 
answered  in  the  affirmative. 

Illusf7'ations. 

A  churchwarden  obtained  a  writ  of  prohibition  against  the  Bishop  of  Chichester  on 
an  affidavit  which  falsely  stated  the  facts.  He  immediately  had  the  writ  translated 
into  English,  and  dispersed  2000  copies  of  such  translation  all  over  the  kingdom  with  a 
title-page  alleging  that  by  such  writ  "the  illegality  of  oaths  is  declared,"  which  was 
not  the  case.  Held,  "a  most  seditious  libel."  Watertield  v.  Bishop  of  Chichester,  2 
Mod.  118. 

1  Stevens  v.  Sampson,  5  Exch.  D.  53. 

2  See  the  remarks  of  Wood,  V.-C,  in  Coleman  v.  West  Hartlepool  Harbor  &  Rail- 
way Cy.,  2  L  T.  766  ;  8  W.  R.  734. 

227 


*  257  QUALIFIED  PRIVILEGE. 

In  a  County  Court  action,  Nettlefold  v.  Fulcher,  the  defendant,  a  solicitor,  appeared 
for  Nettlefold,  and  commented  severely  on  the  conduct  of  the  plaintiff,  who  was  Ful- 
cher's  agent  and  debt  collector.  The  defendant  sent  to  the  local  newspapers  a  report 
of  the  case,  which  the  jury  found  "  was  in  substance  a  fair  report ; "  but  they  also 
found  that  "  it  was  sent  with  a  certain  amount  of  malice."  Verdict  for  the  plaintiff. 
Damages,  40s.  On  appeal,  it  was  argued  that  the  defendant  was  entitled  to  judgment 
on  the  first  finding  of  the  jury,  and  that  the  motive  which  the  defendant  had  in  sending 
the  report  was  immaterial.  But  the  Court  of  Appeal  held  that  Cockburn,  C.J.,  was 
right  in  directing  judgment  to  be  entered  for  the  plaintiff.  Stevens  v.  Sampson,  5  Ex. 
D.  53  ;  49  L.  J.  Q.  B.  120 ;  28  W.  E.  87 ;  41  L.  T.  782. 

Where  the  Court  of  Directors  resolved  to  dismiss  the  plaintiff,  one  of  their  officers, 
for  misconduct,  and  the  defendant,  the  Governor  in  Council  of  Fort  St.  George,  pub- 
lished this  sentence  of  dismissal,  it  was  held  that  no  action  lay,  if  it  was  part  of  the 
defendant's  official  duty  so  to  publish  it.  Oliver  v.  Lord  Wm.  Bentinck,  3  Taunt.  456. 
See  Grant  v.  Secretary  of  State  for  India,  2  C.  P.  D.  445  ;  25  W.  R.  848  ;  37  L.  T.  188, 
ante,  p.  196. 

(ii.)  Reijorts  of  Parliame^itary  Proceedings. 

Every  fair  and  accurate  report  of  any  proceeding  in  either 

House  of  Parliament  or  in  any  committee  thereof,  is  jDrivileged, 

even  though  it  contain  matter  defamatory  of  an  individual. 

*  258        *  The  analogy  between  such  reports  and  those  of  legal 

proceedings  is  complete.  Whatever  would  deprive  a  re- 
port of  a  trial  of  imrnunit}-,  will  equally  deprive  a  report  of  parlia- 
mentary proceedings  of  all  privilege. 

There  was  for  a  long  time  great  doubt  on  this  subject,  hut  the  law  is 
now  clearly  and  most  satisfactorily  settled  by  the  decision  in  Wason  v. 
Walter.-'  Such  doubt  was  caused  by  the  fact  that  there  were  standing 
orders  of  both  Houses  of  Parliament  prohibiting  such  publications  ;  and  it 
was  argued  with  some  force  that  no  privilege  coidd  attach  to  any  report 
whicli  was  published  in  contravention  of  such  standing  orders,  and  was 
therefore  in  itself  a  contempt  of  the  House.  We  have  seen  ^  that  when  a 
learned  judge  expressly  prohibits  the  publication  of  the  proceedings  before 
him,  any  report  of  them  is  a  contempt  and  wholly  unprivileged.^  And  the 
earliest  reports  of  parliamentary  proceedings  were  only  published  in  fear 
and  trembling  as  "  Debates  in  the  Senate  of  Lilliput,"  with  the  names  of 
the  speakers  disguised.  And  even  for  such  reports  Cave,  the  editor  of 
the  Gentleman's  Magazine,  was  cited  before  the  House  of  Lords  for 
breach  of  privilege  (April,  1747) ;  and  Johnson's  pen  ceased  to  indite  pon- 
derous speeches  for  "Whig  dogs."  But  in  1749,  Cave  began  again,  and 
his  reports  now  took  the  form  of  letters  from  an  M.  P.  to  a  friend  in  the 

1  L.  R.  4  Q.  B.  73  ;  38  L.  J.  Q.  B.  34  ;  17  W.  R.  169  ;  19  L.  T.  409. 

2  Ante,  p.  249.  ^  R.  v.  Clement,  4  B.  &  Aid.  218. 

228 


PAKLLAJVIENTAEY   REPORTS.  *  258 

country.  After  1752  they  were  avowedly  printed  as  reports;  but  still 
only  the  initials  of  the  speakers  were  given.  As  late  as  1801  the  printer 
and  publisher  of  the  Moridng  Herald  were  committed  to  the  custody  of 
Black  Eod,  for  publishing  an  account  of  a  debate  in  the  House  of  Lords ; 
but  then  such  account  was  expressly  declared  to  be  "  a  scandalous  misrep- 
resentation "  of  what  had  really  occurred.  And  now  such  standing  orders 
are  quite  obsolete.  Within  the  last  four  or  five  years  the  House  of  Com- 
mons has  modified  its  rules  as  to  the  presence  of  "  strangers : "  while  the 
House  of  Lords  has  appointed  a  commission  to  increase  the  facilities  given 
to  reporters,  and  this  commission  has  actually  suggested  the  removal  of  the 
woolsack  to  the  other  end  of  the  House  so  as  to  enable  their  Lordships  to 
be  more  distinctly  heard. 

*  A  speech  made  by  a  member  of  Parliament  in  the  *  259 
House  is  of  course  absolutely  privileged.  If  he  subse- 
quently causes  his  speech  to  be  printed,  and  circulates  it  pri- 
vately among  his  constituents,  bond  fide  for  their  information  on 
any  matter  of  general  or  local  interest,  a  qualified  privilege  would 
attach  to  such  report ;  [in  spite  of  an  obsolete  order  of  the  House 
of  Commons  forbidding  such  publication,  passed  in  16-11,  and 
still  a  standing  order  of  the  House  ;  2  Commons'  Journal,  209]. ^ 
But  if  a  member  of  Parliament  publishes  his  speech  to  all  the 
world  with  the  malicious  intention  of  injuring  the  plaintiff,  be 
will  be  liable  both  civilly  and  criminally .^ 

Illustrations. 

The  defendant  published  the  report  of  a  select  committee  of  the  House  of  Commons 
which  contained  a  paragraph  cliarging  an.  individual  with  liolding  views  hostile  to  the 
government.  But  the  Court  refused  to  grant  a  criminal  information  on  the  express 
ground  that  the  publication  was  a  true  copy  of  a  proceeding  in  parliament.  R.  v. 
Wright  (1799),  8  T.  R.  293. 

The  plaintiff  induced  Earl  Russell  to  present  a  petition  to  the  House  of  Lords  charg- 
ing a  high  judicial  officer  with  having  suppressed  evidence  before  an  election  committee 
some  thirty  years  previously.  The  charge  was  shown  to  be  wholly  unfounded,  and 
the  conduct  of  the  plaintiff  in  presenting  such  a  petition  was  severely  commented  on 
by  the  Earl  of  Derby  and  others  in  the  debate  which  followed.  The  plaintiff  sued  the 
proprietor  of  the  Times  for  reporting  this  debate.  Cockburn,  C.J.,  directed  the  jury 
that  if  they  were  satisfied  that  the  report  was  faithful  and  correct,  it  was  in  point  of 
law  a  privileged  communication  ;  and  the  Court  of  Queen's  Bench  subsequently  dis- 
charged a  rule  nisi  which  had  been  obtained  for  a  new  trial  on  the  ground  of  misdirec- 

1  Per  Ld.  Campbell,  C.J.,  and  Crompton,  J.,  in  Davison  v.  Duncan,  7  E.  &  B. 
233  ;  26  L.  J.  Q.  B.  107  ;  and  Cockburn,  C.J.,  in  Wason  v.  Walter,  L.  R.  4  Q.  B.  95  ; 
38  L.  J.  Q.  B.  42  ;  19  L.  T.  416. 

2  R.  V.  Lord  Abingdon,  1  Esp.  226  ;  R.  v.  Creevey,  1  M.  &  S.  273. 

229 


*  259  QUALIFIED   PRIVILEGE. 

tion.     "Wason  v.  "Walter,  L.  R.  4  Q.  B.  73  ;  8  B.  &  S.  671  ;  38  L.  J.  Q.  B.  34  ;  17  W.  R. 
169  ;  19  L.  T.  409. 

The  proceedings  of  any  Committee  of  the  House  of  Lords  may  be  reported  and  com- 
mented on.     Kane  v.  Mulvany,  Ir.  L.  R.  2  C.  L.  402. 

*  260  *  (iii.)    Other  Reports. 

No  other  reports  are  privileged.  If  any  one  publishes  an  ac- 
count of  the  proceedings  of  any  meeting  of  a  town-council,  board 
of  guardians,  or  vestry,  of  the  shareholders  in  any  company,  of 
the  subscribers  to  any  charity,  or  of  any  public  meeting,  political 
or  otherwise  ;  and  such  account  contains  expressions  defamatory 
of  the  plaintiff ;  the  fact  that  it  is  a  fair  and  accurate  report  of 
what  actually  occurred  will  not  avail  as  a  defence,  though  it  may 
be  urged  in  mitigation  of  damages.  By  printing  and  publishing 
the  statements  of  the  various  sjieakers,  he  has  made  them  his 
own ;  and  must  either  justify  and  prove  them  strictly  true, 
(c.  VII.)  or  he  may  rely  upon  their  being  fair  and  lond  fide 
comments  on  a  matter  of  public  interest. 

Illustrations. 

The  defendants,  the  printers  and  publishers  of  the  Manchester  Courier,  published  in 
their  paper  a  report  of  the  proceedings  at  a  meeting  of  the  Board  of  Guardians  for  the 
Altrincliani  Poor  Law  Union,  at  which  ex  parte  charges  were  made  against  the  medical 
officer  of  the  union  workhouse  at  Knutsford,  of  neglecting  to  attend  the  pauper  patients 
when  sent  for.  Held,  that  the  matter  was  one  of  public  interest;  but  that  the  report 
was  not  privileged  by  the  occasion,  although  it  was  admitted  to  be  a  bond  fide  and  a 
correct  account  of  what  passed  at  the  meeting  ;  and  the  plaintiff  recovered  40*.  damages 
and  costs.  Purcell  v.  Sowler,  1  C.  P.  D.  781  ;  2  C.  P.  D.  215  ;  46  L.  J.  C.  P.  308  ;  25 
W.  R.  362  ;  36  L.  T.  416. 

A  public  meeting  was  called  for  the  purpose  of  petitioning  Parliament  against  the 
grant  to  the  Roman  Catholic  College  at  ^laynooth.  The  defendant  made  a  telling 
speech  at  such  meeting  commenting  severely  on  penances  and  other  portions  of  the  dis- 
cipline of  the  Roman  Catholic  Church.  Had  the  words  been  defamatory  of  the  plaintiff, 
the  Court  held  that  they  would  not  have  been  privileged,  although  the  object  of  the 
meeting  was  legal,  and  the  defendant's  speech  was  pertinent  to  the  occasion.  Hearne 
V.  Stowell,  12  A.  &  E.  719  ;  4  P.  &  D.  696  ;  6  Jur.  458  ;  ante,  p.  127.  See  Pierce  v. 
Ellis,  6  Ir.  C.  L.  R.  55. 

At  a  meeting  of  the  West  Hartlepool   Improvement  Commissioners,  one 

*  261     *  of  the  Commissioners  made  some  defamatory  remarks  as  to  the  conduct  of 

the  former  secretary  of  the  Bishop  of  Durham  in  procuring  from  the  Bishop  a 
license  for  the  chaplain  of  the  "West  Hartlepool  Cemetery.  These  remarks  were  re- 
ported in  the  local  newspaper,  and  the  secretary  brought  an  action  against  the  owner 
of  the  newspaper  for  libel.  A  plea  of  justification  alleging  that  such  remarks  were  in 
fact  made  at  a  [>ublic  meeting  of  the  commissioners,  and  that  the  alleged  libel  was  an 

230 


NEWSPAPER   REPORTS.  *  261 

impartial  and  accurate  report  of  what  took  place  at  such  meeting,  was  held  bad  on  de- 
murrer, Davison  v.  Duncan,  7  E.  &  B.  229  ;  26  L.  J.  Q.  B.  104 ;  3  Jur.  N.  S.  613  ;  5 
W.  R.  253  ;  28  L.  T.  (0.  S.)  265. 

So  also  a  newspaper  proprietor  will  be  held  liable  for  publishing  a  report  made  to 
the  vestry  by  their  medical  oflacer  of  health,  even  although  the  vestry  are  ret^uired  by 
Act  of  Parliament  sooner  or  later  to  publish  such  report  themselves.  Popham  v.  Pick- 
burn,  7  H.  &  N.  891  ;  31  L.  J.  Ex.  133  ;  8  Jur.  N.  S.  179  ;  10  W.  R.  324  ;  5  L.  T. 
846.     See  also  Charlton  v.  Watton,  6  C.  &  P.  385. 

It  is  considered  that  this  rule  works  a  hardship  upon  newspaper  pro- 
prietors, who  in  the  ordinary  course  of  their  business  have  presented  to  the 
public  a  full,  true  and  impartial  account  of  what  really  took  place  at  a  pub- 
lic meeting,  considering  no  doubt  that  thereby  they  were  merely  doing 
their  duty.  The  Scotch  Law  on  the  subject  is  said  to  be  less  stringent 
than  that  of  England  or  Ireland.  The  Select  Committee  of  the  House  of 
Commons  appointed  to  inquire  into  the  Law  of  Libel  "  after  careful  con- 
sideration, have  come  to  the  conclusion  that  the  balance  of  convenience 
requires  that  further  protection  should  be  given  to  such  reports."  They 
"  accordingly  recommend  that  any  report  published  in  any  newspaper  of 
the  proceedings  of  a  public  meeting  should  be  privileged,  if  such  meeting 
was  lawfully  convened  for  a  lawful  purpose,  and  was  open  to  the  public, 
and  if  such  report  was  fair  and  accurate,  and  published  without  malice, 
and  if  the  publication  of  the  matter  complained  of  was  for  the  public 
benefit."  But  they  "  are  of  opinion  that  such  protection  should  not  be 
available  as  a  defence  in  any  proceeding  if  the  plaintiff  or  prosecutor  can 
show  that  the  defendant  has  refused  to  insert  a  reasonable  letter,  or  state- 
ment of  explanation  or  contradiction  by  or  on  behalf  of  such  plaintiff  or 
prosecutor." 

But  it  appears  to  me  that  no  adequate  reasons  are  assigned  for 
such  a  change  in  the  law.  The  consequences  of  publishing  *  in  *  262 
the  papers  calumnies  uttered  at  a  public  meeting  are  most  serious. 
The  original  slander  may  not  be  actionable  ^^er  se,  or  the  communication 
may  be  privileged ;  so  that  no  action  lies  against  the  speaker.  Moreover 
the  meeting  may  have  been  thinly  attended,  and  the  audicmce  may  have 
known  that  the  speaker  was  not  worthy  of  credit.  But  it  would  be  a 
terrible  thing  for  the  person  defamed  if  such  words  could  be  printed  and 
published  to  all  the  world,  merely  because  they  were  uttered  under  such 
circumstances  at  such  a  meeting.  Charges  recklessly  made  in  the  excite- 
ment of  the  moment  will  thus  be  diffused  throughout  the  country,  and  will 
remain  recorded  in  a  permanent  form  against  a  perfectly  innocent  person. 
We  cannot  tell  into  whose  hands  a  copy  of  that  newspaper  may  come. 
Moreover  additional  importance  and  weight  is  given  to  sucli  a  calumny  by 
its  republication  in  the  columns  of  a  respectable  paper.  Many  people  will 
believe  it   merely  because  it  is  in  print.     There  is  in   fact  an  immense 

231 


*  262  QUALIFIED   PRIVILEGE. 

difference  between  the  injury  done  by  such  a  slander  and  that  caused  by 
its  extended  circulation  by  the  press.^ 

The  Select  Committee  appear  to  me,  if  I  may  venture  to  say  so,  to  have 
attached  too  much  importance  to  the  absence  of  malice,  which  generally 
characterizes  such  reports,  and  too  little  importance  to  the  damage  inflicted 
on  the  plaintiff  by  the  publication.  Their  proviso  as  to  the  insertion  of 
the  plaintiff's  contradiction  is  clearly  intended  to  protect  reports  published 
bond  fide  or  inadvertently,  as  distinct  from  those  published  maliciously. 
But  malice  is  in  no  way  essential  to  an  action  of  libel,  except  in  cases  of 
qualified  privilege.  It  is  surely  anomalous  to  determine  the  question  : 
"  Was  the  occasion  such  as  to  create  a  privilege  for  the  libel  1 "  by  reference 
to  the  subsequent  conduct  of  the  defendant.  And  it  is,  I  think,  but  a  poor 
satisfaction  to  a  plaintiff  to  allow  him  to  write  "  a  reasonable  letter  of 
contradiction."  Many  who  read  the  report  would  not  read  the  plaintiff's 
letter,  and  those  who  did  would  probably  not  believe  it ;  they  would  say  : 
"  Oh,  of  course  he  denies  it."     It  would  be  difficult  too  to  decide 

*  263    what  *  is  and  what  is  not  "  a  reasonahle  letter  "  under  such  circum- 

stances. And  then  the  speaker  at  the  meeting,  or  some  friend  of 
his,  would  be  sure  to  write  a  letter  in  reply  to  the  plaintiff's,  re-asserting 
the  truth  of  the  original  charge,  and  probably  adding  a  judicious  selection 
of  fresh  accusations,  and  this  letter  also  the  editor  would  be  bound  in  fair- 
ness to  insert.  And  thus  would  arise  a  newspaper  warfare  which  would 
only  prolong  and  aggravate  the  mischief  caused  by  the  report. 

The  existing  law  appears  to  me  to  afford  sufficient  protection  to  news- 
paper proprietors.  They  ought  surely  to  be  liable  to  a  civil  action,  when- 
ever they  publish  a  report  defamatory  of  the  plaintiff  on  a  matter  in  which 
the  public  have  no  interest  or  concern.  The  Select  Committee  do  not  de- 
sire to  encourage  any  mischievous  prying  into  the  private  afiliirs  of  others, 
for  they  add  the  express  proviso  "  if  the  publication  of  the  matter  com- 
plained of  was  for  the  public  benefit."  If,  however,  the  matter  is  one  of 
public  interest,  then  all  fair  and  bond  fide  comments  thereon  are  held  not 
to  be  libellous,  and  no  action  lies.  And  surely  if  unfair  and  maid  fide 
comments  appear  in  a  newspaper,  the  owner  ought  to  be  held  liable  for  the 
injury  thus  done  by  his  subordinates.  In  criminal  proceedings,  newspaper 
proprietors  can  avail  themselves  of  the  defences  allowed  them  by  Lord 
Campbell's  act,  which  appear  to  me  sufficient  for  the  purpose. 

1  See  the  remarks  of  Lord  Campbell  in  Davison  v.  Duncan,  7  E.  &  B.  231  ;  26  L. 
J.  Q.  B.  106  ;  3  Jur.  N.  S.  613  ;  5  W.  R.  253  ;  28  L.  T.  (Old  S.)  265  ;  and  of  Best, 
C.J.,  in  De  Crespigny  v.  Wellesley,  5  Bing.  402-406,  cited  ante,  pp.  157,  8,  c.  VL 

232 


*  CHAPTER  IX.  *264 

MALICE. 

"  In  an  ordinary  action  for  a  libel  or  for  words,  though  evidence 
of  malice  may  be  given  to  increase  the  damages,  it  never  is  con- 
sidered as  essential,  nor  is  there  any  instance  of  a  verdict  for  the 
defendant  on  the  ground  of  a  want  of  malice."  ^  («)  As  we  have 
seen,  an  accidental  or  inadvertent  publication  of  defamatory 
words  is  ground  for  an  action.  Even  a  lunatic  is  liable  for  a 
libel.2  The  Courts  for  this  purpose  look  at  the  tendency  of  the 
publication,  not  at  the  intention  of  the  publisher.^  The  fact 
that  the  jury  have  expressly  found  in  defendant's  favor  that  he 
had  no  malicious  intent,  shall  not  avail  him  ;*  for  if  he  has  in 
fact  spoken  words  which  have  injured  the  plaintiff's  reputation 
he  must  be  taken  to  have  intended  the  consequences  naturally 
resulting  therefrom. 

*  In  former  days  this  rule  was  not  so  strictly  enforced  in  actions  *  265 
of  slander  as  of  libel ;  the  Courts  in  those  days  evincing  a  strong 
desire  to  discourage  all  actions  of  slander,  except,  perhaps,  in  cases  where 
the  words  imputed  a  capital  offence.  Thus,  where  the  defendant  was  sued 
for  saying  that  he  had  heard  that  the  plaintiff  had  been  hanged  for  stealing 
a  horse,  and  on  the  evidence  it  appeared  that  the  defendant  spoke  the 
words  in  genuine  grief  and  sorrow  at  the  news,  Hobart,  J.,  nonsuited  the 
plaintiff  on  the  express  ground  that  the  words  were  not  spoken  maliciously.^ 
Now,  however,  the  absence  of  malice  could  only  be  given  in  evidence  in 
mitigation  of  damages  ;    and  the  question  whether   the  defendant  acted 

1  Per  Bayley,  J.,  in  Bromage  v.  Prosser,  1  C.  &  P.  475  ;  4  B.  &  C.  257  ;  6  Dowl. 
&  R.  295  ;  and  jier  Mansfield,  C.J.,  in  Hargrave  v.  Le  Breton,  4  Burr.  2425. 

2  Per  Kelly,  C.B.,  in  Mordaunt  r.  Mordaunt,  39  L.  J.  Prol).  &  Matr.  59. 

3  Haire  v.  Wilson,  9  B.  &  C.  643  ;  4  Man.  &  Ry.  605  ;  Fisher  v.  Clement,  10  B.  & 
C.  472  ;  5  Man.  &  Ry.  730. 

*  Per  Maule,  J.,  in  Wenman  ■».  Ash,  13  C.  B.  845  ;  22  L.  J.  C.  P.  190  ;  17  Jur. 
579  ;  1  C.  L.  R.  592  ;  Huntley  v.  "Ward,  6  C.  B.  N.  S.  514  ;  6  Jur.  N.  S.  18  ;  1  F.  & 
F.  552  ;  Blackburn  v.  Blackburn,  4  Bing.  395  ;  1  M.  &  P.  33,  63  ;  3  C.  &  P.  146. 

5  Crawford  v.  Middleton,  1  Lev.  82.  And  see  Greenwood  v.  Prick,  cited  Cro.  Jac. 
91,  a7ite,  p.  6. 

(a)  See  in  regard  to  implied  malice  note  antr,  p.  6. 

233 


*  265  IMALICE. 

maliciously  or  not,  should  never  be  left  to  the  jury,  unless  the  occasion  he 
privileged.'^  (a)  The  defendant's  intention  or  motive  in  using  the  words 
is,  in  fact,  immaterial. 

If  I  have  in  fact  wrongfully  injured  another's  reputation,  I  must  compen- 
sate him,  although  I  may  have  acted  from  the  noblest  motives.  Just  as  if 
I  break  A.'s  window  accidentally  in  the  attempt  to  save  a  child  from  faD- 
ing  down  a  grating,  I  am  still  bound  in  law  to  pay  A.  the  value  of  the 
broken  pane.  If,  then,  I  have  defamed  A.  without  lawful  excuse,  that  is, 
on  an  occasion  not  privileged,  malice  forms  no  part  of  the  issue.^ 

It  is  true  that  the  word  "  malicious  "  is  usually  inserted  in  every  defini- 
tion of  libel  or  slander,  that  the  pleader  invariably  introduces  it  into  every 
statement  of  claim,  and  that  the  older  cases  contain  many  dicta  to  the  effect 
that  "  malice  "  is  essential  to  an  action  for  libel  or  slander.  But  in  all  these 
cases  the  word  "  malice  "  is  vised  in  a  special  and  technical  sense  ;  it  de- 
notes "  the  absence  of  latvful  excuse ;  "  in  fact,  to  say  that  defamatory  words 
are  malicious  in  that  sense  means  simply  that  they  are  unprivileged,  not 
employed  under  circumstances  which  excuse  them.  But  I  have  dropped 
this  technical  and  fictitious  use  of  the  word  altogether  —  a  use  which 
has    been  termed  an  "  unfortunate  "  one  by  learned  judges.^  (6)     I 

*  266    *  use   the  word  malice  in   the   popular  and  ordinary  sense  of  the 

word  ;  i.e.,  to  denote  some  ill-feeling  towards  the  plaintiff"  or  the  pub- 
lic ;  some  mean  or  crooked  motive  of  which  an  honorable  man  would  be 
ashamed.  This  is  called  "  express  malice"  or  " actiial  malice  "  in  our  older 
books.  Using  the  word  in  this  sense,  I  say  that  till  the  defendant  pleads 
privilege,  malice  is  no  part  of  the  issue.  As  soon  as  that  plea  is  placed  on 
the  record,  the  plaintiff"  has  to  prove  malice,  but  Hot  before. 

But  as  soon  as  the  Judge  rules  that  the  words  are  privileged 
by  reason  of  the  occasion  on  which  they  were  uttered  or  published, 

1  Haire  v.  Wilson,  9  B.  &  C.  643  ;  4  Man.  &  Ry.  605.  Per  Lord  Denman  in  Baylis 
V.  La^vi-encp,  11  A.  &  E.  924;  3  P.  &  D.  529  ;  4  Jur.  652.  Per  Parke,  B.,  in  O'Brien 
V.  Clement,  15  :\I.  &  W.  437. 

-  Hooper  v.  Truscott,  2  Scott,  672  ;  2  Bing.  N.  C.  457;  Godson  v.  Home,  1  Br.  & 
B.  7;  3  Moore,  223.  ^  See  41  L.  T.  590. 

(«)  This,  as  we  have  said  in  the  note  nal  standard  by  which  men  are  to  be  judged 

ante,   p.  6,   appears  to  proceed  upon  the  (Holmes,   Common  Law,  Lect.  2-4),  it  is 

simple  and  intelligible  ground  that  it  is  still  more  clear  that  the  malice  in  question 

not  deemed  advisable  to  permit  a  man  to  is  to  be  treated  as  actual  (until  disproved), 

testify  as  to  the  state  of  his  own  mind  ex-  for  "the  average  man  "  of  the  law  would 

cept  in  so  far  as  that  is  manifested  by  ex-  in  publishing  defamation  be  actuated  by 

temal  facts  (the  "occasion"  of  the  books)  ;  malicious    feeling.      See  the   note   above 

for  evidence   should  relate  to   facts  that  mentioned,  p.  6. 

may  be  testified  and  denied  by  all  men.  (b)  For  the  editor's  view  of  this  sub- 

If  however  this  is  to  be  considered,  what  ject,  see  the  note  just  cited,  p.  6. 
is  much  the  same  thing,  a  case  of  the  exter- 

234 


JIALICE   IX  -LAW.  *  266 

then  (unless,  indeed,  the  privilege  be  absolute),  the  question  of 
malice  becomes  all-important.  In  the  words  of  Lord  Justice 
Brett  in  Clark  v.  Molyneux :  ^  —  "  When  there  has  been  a  writing 
or  a  speaking  of  defamatory  matter,  and  the  Judge  has  held  — 
and  it  is  for  him  to  decide  the  question  —  that  although  the  mat- 
ter is  defamatory  the  occasion  on  which  it  is  either  written  or 
spoken  is  privileged,  it  is  necessary  to  consider  how,  although  the 
occasion  is  privileged,  yet  the  defendant  is  not  permitted  to  take 
advantage  of  the  privilege.  If  the  occasion  is  privileged  it  is  so 
for  some  reason,  and  the  defendant  is  only  entitled  to  the  protec- 
tion of  the  privilege  if  he  uses  the  occasion  for  that  reason.  He 
is  not  entitled  to  the  protection  if  he  uses  the  occasion  for  some 
indirect  and  wrong  motive.  If  he  uses  the  occasion  to  gratify  his 
anger  or  his  malice,  he  uses  the  occasion  not  for  the  reason  which 
makes  the  occasion  privileged,  but  for  an  indirect  and  wrong  motive. 
If  the  indirect  and  wrong  motive  suggested  to  take  the  defama- 
tory matter  out  of  the  privilege  is  malice,  then  there  are  certain 
tests  of  malice.  Malice  does  not  mean  malice  in  law,  a  term  in 
pleading,  but  actual  malice,  that  which  is  popularly  called  malice. 
If  a  man  is  proved  to  have  stated  that  which  he  knew  to  be 
false,  *  no  one  need  inquire  further.  Everybody  assumes^  *  267 
thenceforth  that  he  was  malicious,  that  he  did  do  a  wrong 
thing  for  some  wrong  motive.  So  if  it  be  proved  that  out  of  anger, 
or  for  some  other  wrong  motive,  the  defendant  has  stated  as  true 
that  which  he  does  not  know  to  be  true,  and  he  has  stated  it 
whether  it  is  true  or  not,  recklessly,  by  reason  of  his  anger  or 
other  motive,  the  jury  may  infer  that  he  used  the  occasion,  not 
for  the  reason  which  justifies  it,  but  for  the  gratification  of  his 
anger  or  other  indirect  motive.  The  judgment  of  Bayley,  J.,  in 
Bromage  v.  Prosser,-  treats  of  malice  in  law,  and  no  doubt  where 
the  word  '  maliciously '  is  used  in  a  pleading,  it  means  intention- 
ally, wilfully.  It  has  been  decided  that  if  the  word  '  maliciously ' 
is  omitted  in  a  declaration  for  libel,  and  the  words  '  wrongfully ' 
or  '  falsely '  substituted,  it  is  sufficient,  (a)  the  reason  being  that 

1  3  Q.  B.  D.  246,  247;  47  L.  J.  Q.  B.  230  ;  26  W.  R.  104;  37  L.  T.  694. 

2  4  B.  &  C.  at  p.  255. 

(a)  Kingt'.  Root,  4  "VVend.  113;  "Wrav.     Gratt.  343  ;  Williams  v.  Gordon,  11  Bnsh, 
er  V.   Hendrick,  30    Mo.    502  ;  White   v.     693.     See  Keesling  v.  McCall,  36  Ind.  321  ; 
Nichols,  3  How.  266.     But  see  Noonan  v.     Viele  v.  Gray,  10  Abb.  Pr.  1. 
Orton,  32  Wis.  106  ;  Dillard  v.  Collins,  25 

235    • 


*  267  MALICE. 

the  word  '  maliciously,'  as  used  in  a  pleading,  has  only  a  technical 
meaning  ;  but  here  we  are  dealing  with  malice  in  fact,  and  malice 
then  means  a  wrong  feeling  in  a  man's  mind." 

Malice  may  be  defined  as  any  indirect  and  wicked  motive  which 
induces  the  defendant  to  defame  the  plaintiff.  If  malice  be 
proved,  the  privilege  attaching  to  the  occasion  is  lost  at  once. 

Illustrations. 

Plaintiff  assaulted  the  defendant  on  the  highway;  the  defendant  met  a  constable 
and  asked  him  to  arrest  the  plaintiff.  The  constable  refused  to  arrest  the  plaintiff  un- 
less he  was  charged  with  a  felony.  The  defendant  knowing  full  well  that  the  plaintiff 
had  committed  a  misdemeanor  onlj,  viz.^  the  assault,  charged  him  with  felony,  in  or- 
der to  get  him  locked  up  for  the  night.  Held  that  the  charge  of  felony  was  malicious, 
as  being  made  from  an  indirect  and  improper  motive.  Smith  v.  Hodgeskins,  Cro.  Car. 
276. 

A  near  relative,  or  even  an  intimate  friend,  may  warn  a  lady  not  to  marry  a 

*  268     particular  suitor,  and  assign  his  reasons  for  thus  cautioning  her,  provided  *thi3 

be  done  with  a  conscientious  desire  for  her  welfare,  and  in  the  bond  fide  belief 
that  the  charges  made  are  true.     Todd  i-.  Hawkins,  2  M.  &  Rob.  20  ;  8  C.  &  P.  888. 

But  if  a  total  stranger  wrote  an  anonymous  letter  to  the  lady  ;  or  d  fortiori,  if  a 
rival  thus  endeavored  to  oust  the  plaintiff  from  the  lady's  affections,  there  would  be 
evidence  of  malice  to  go  to  the  jurj'. 

The  defendant  on  being  applied  to  for  the  character  of  the  plaintiff  who  had  been 
his  salesiteman,  charged  her  with  theft.  He  had  never  made  such  a  charge  against  her 
till  then  ;  he  told  her  that  he  would  say  nothing  about  it,  if  she  resumed  her  employ- 
ment at  his  house  ;  subser[uently,  he  said  that  if  she  would  acknowledge  the  theft  he 
would  give  her  a  character.  Held  that  there  was  abundant  evidence  that  the  charge 
of  theft  was  made  innldfide,  with  the  intention  of  compelling  plaintiff  to  return  to  de- 
fendant's service.  Damages,  £60.  Jackson  ■;;.  Hopperton,  16  C.  B.  (X.  S.)  829  ;  12 
W.  R.  913  ;  10  L.  T.  529  ;  Rogers  v.  Clifton,  3  B.  &  P.  587. 

The  defendant  made  a  charge  of  felony  against  his  former  shopman  to  his  relatives 
during  his  absence  in  London,  with  a  view  of  inducing  them  to  compound  the  alleged 
felony,  and  not  for  the  purpose  of  prosecution  or  investigation.  He  actually  received 
£50  from  plaintiff's  brother  as  hush-money.  Held  that  the  charge  of  felony  was  alto- 
gether unprivileged.     Hooper  v.  Truscott,  2  Bing.  X.  C.  457;  2  Scott,  672. 

Letters  from  the  commanding  officer  of  a  regiment  to  his  immediate  superior,  con- 
taining charges  against  the  colonel  in  command;  and  a  conversation  with  a  member  of 
Parliament  as  to  a  question  to  be  put  in  the  House  of  Commons  relative  to  the  dismis- 
sal of  the  Colonel  on  those  charges,  were  held  to  be  primd  facie  privileged:  but  circum- 
stances showing  that  the  letters  were  written,  not  from  a  sense  of  duty,  but  from 
personal  resentment  on  account  of  other  matters,  and  that  the  object  of  the  conversa- 
tion was  to  prejudice  the  plaintiff  by  reason  of  such  personal  resentment —  held,  evi- 
dence of  actual  malice,  taking  away  the  privilege.  Dickson  v.  The  Earl  of  Wilton,  1 
F.  &F.  419. 

A  speech  made  by  a  member  of  Parliament  in  the  House  is  absolutely  privileged ;  but 
if  he  subsequently  causes  his  speech  to  be  printed,  and  published,  with  the  malicious 
intention  of  injuring  the  plaintiff,  he  will  be  liable  both  civilly  and  criminally.  R.  v. 
Lord  Abingdon,  1  Esp.  226  ;  R.  v.  Creevey,  1  M.  &  S.  273. 

.    236 


PLAINTirr   MUST  PEOVE   MALICE,  *  268 

The  rector  dismissed  the  parish  schoolmaster  for  refusing  to  teach  in  the  Sunday 
School.  The  schoolmaster  opened  another  school  on  his  own  account  in  the  parish. 
The  rector  published  a  pastoral  letter  warning  all  parishioners  not  to  support  "  a  schis- 
matical  school,"  and  not  to  be  partakers  with  the  plaintiff  "in  his  evil  deeds,"  which 
tended  "  to  produce  disunion  and  schism,"  and  "  a  spirit  of  opposition  to  authority." 
Held  that  there  was  some  evidence  to  go  to  the  jury  that  the  rector  cherished  anger  and 
malice  against  the  schoolmaster.  Gilpin  v.  Fowler,  9  Ex.  615  ;  23  L.  J.  Ex.  152  ;  18 
Jur.  293. 

*  The  defendants  presented  a  petition  in  the  Croydon  County  Court  to  *  269 
adjudicate  the  plaintiff  a  bankrupt,  and  to  set  aside  a  bill  of  sale  which  they 
alleged  to  be  fraudulent.  The  County  Court  judge  heard  the  case  in  his  own  room, 
where  no  reporters  were  present,  and  decided  that  the  bill  of  sale  was  fraudulent. 
After  the  case  was  over,  the  defendants  sent  for  a  reporter  to  the  Greyhound  Hotel, 
and  gave  him  an  account  of  the  proceedings  before  the  County  Court  judge,  from  which 
he  drew  up  a  report  which  appeared  in  several  papers.  The  jury  found  that  the  report 
was  "  fair  as  far  as  it  went  ; "  but  it  did  not  state  the  fact  that  the  plaintiff  liad  an- 
nounced his  intention  to  appeal.  Held  that  neither  this  omission,  nor  the  fact  that 
the  report  was  furnished  by  one  of  the  parties,  instead  of  being  taken  by  the  reporter 
in  the  usual  way,  was,  by  itself,  sufficient  to  destroy  the  privilege  attaching  to  all  fair 
reports  of  legal  proceedings.  Per  Cockbum,  C.J.,  at  Nisi  Prius,  Myers  v.  Defries, 
Times,  July  23rd,  1877.  [But  the  jury  being  satisfied  from  the  whole  cii'cumstances 
that  the  defendant  furnished  the  report  with  the  express  intention  of  injuring  the  plain- 
tiflF,  gave  the  plaintiff  £250  damages  on  the  first  trial,  and  one  farthing  damages  on  the 
second.  See  Myers  t;.  Defries,  4  Ex.  D.  176  ;  5  Ex.  D.  15, 180  ;  48  L.  J.  Ex.  446 ;  28 
"W.  R.  406  ;  40  L.  T.  795;  41  L.  T.  695;  from  which  it  would  seem  the  jury  at  all  events 
considered  that  a  man  may  not  injure  his  enemy,  even  with  a  fair  weapon.]  And  see 
Stevens  v.  Sampson,  5  Exch.  Div.  53  ;  49  L.  J.  Q.  B.  120  ;  28  W.  E.  87  1*41  L.  T. 
782.     Salmon  v.  Isaac,  20  L.  T.  885. 

The  onus  of  proving  malice  lies  on  the  plaintiff ;  the  defendant 
cannot  be  called  on  to  prove  he  did  7iot  act  maliciously,  till  some 
evidence  of  malice,  more  than  a  mere  scintilla^  has  been  adduced 
by  the  plaintiff.^  And  the  plaintiff  must  prove  express  malice 
by  some  evidence  besides  that  which  merely  proves  the  falsit}"- 
of  the  statement.2  That  the  defendant  was  mistaken  in  the 
words  he  spoke  confidentially  is,  taken  alone,  no  evidence  of 
malice.^ 

*  Malice  may  be  proved  by  some  extrinsic  evidence  of  *  270 
ill-feeling,  or  personal  hostility  between  plaintiff  and  de- 

1  Taylor  v.  Hawkins,  16  Q.  B.  321  ;  15  Jur.  746  ;  20  L.  J.  Q.  B.  313 ;  Cook  and 
another  v.  Wildes,  o  E.  &  B.  340  ;  24  L.  J.  Q.  B.  367  ;  1  Jur.  N.  S.  610  ;  3  C.  L.  R. 
1090  ;  Clark  v.  Molyneux  (C.  A),  3  Q.  B.  D.  237  ;  47  L.  J.  Q.  B.  230  ;  26  W.  R. 
104  ;  37  L.  T.  694  ;  14  Cox,  C.  C.  10  ;  Chillingworth  v.  Grimble  (C.  A.),  Times,  for 
Nov.  7th,  1877. 

2  Caulfield  v.  Whitworth,  16  W.  R.  936  ;  18  L.  T.  527. 

3  This  is  so  also  in  America  ;  see  Lewis  and  Herrick  v.  Chapman  (Selden,  J. ),  2 
Smith  (16  N.  Y.  R.),  369  ;  Vanderzee  v.  McGregor,  12  Wend.  546  ;  Fowles  v.  Bowen, 
3  Tififany  (30  N.  Y.  R.)  20. 

237 


*  270  ISIALICE. 

fendant ;  such  as  threats  by  defendant  that  he  would  rid  the 
town  of  the  plamtiff  ;^  former  libels  or  slanders  on  the  plaintiff, 
&c.  Such  evidence  must  go  to  prove  that  the  defendant  him- 
self was  actuated  by  personal  malice  against  the  plaintiff.  In  an 
action  against  the  publisher  of  a  magazine,  evidence  that  the 
editor  or  the  author  of  any  article,  not  being  the  publisher,  had 
a  spite  against  the  plaintiff,  is  of  course  inadmissible.'^  But  the 
plaintiff  is  not  bound  to  prove  malice  by  extrinsic  evidence  ;  ^  he 
may  rely  on  the  words  of  the  libel  itself  and  on  the  circumstances 
attending  its  publication,  as  affording  evidence  of  malice  ;  or  in 
case  of  slander  on  the  exaggerated  language  used,  and  on  the 
fact  that  third  persons  were  present. 

But  in  either  case,  if  the  evidence  adduced  is  equally  con- 
sistent with  either  the  existence  or  non-existence  of  malice,  the 
Judge  should  stop  the  case  ;  for  there  is  nothing  to  rebut  the 
presumption  which  has  arisen  in  favor  of  the  defendant  from 
the  privileged  occasion.'*  Thus,  if  the  only  evidence  of  malice 
be  the  terms  of  the  libel  itself  in  reference  to  an  act  of  the  plain- 
tiff's, and  that  act  was  in  its  nature  equivocal,  and  would  bear  a 
construction  compatible  with  hojia  fides  in  the  defendant,  then 
Ahere  is  no  evidence  of  malice  to  go  to  the  jury.^ 

*  271        *  A  mere  mistake  innocently  made  through   excusable 

inadvertence  cannot  in  any  case  be  evidence  of  malice.^ 

I.  Extrinsic  evidence  of  malice. 

Malice  may  be  proved  by  extrinsic  evidence  {a)  showing  that 
the  defendant  bore  a  long-standing  grudge  against  the  plaintiff, 

1  Blagg  V.  Start,  10  Q.  B.  904  ;  11  Jur.  101  ;  16  L.  J.  Q.  B.  39. 

2  Eobertson  v.  Wylde,  2  Moo.  &  Rob.  101  ;  Clark  v.  Newsam,  1  Ex.  131,  139  ; 
'Caitnichael  v.  Waterford  and  Limericlv  Ry.  Co.,  13  Ir.  L.  R.  313. 

3  Wright  V.  Woodgate,  2  C.  M.  &  R.  573 ;  1  Tyr.  &  G.  12  ;  1  Gale,  329. 

4  Somerville  v.  Hawkins,  10  C.  B.  590  ;  20  L.  J.  C.  P.  131 ;  15  Jur.  450  ;  Harris 
V.  Thompson,  13  C.  B.  333. 

5  Spill  V.  Maule,  L.  K.  4  Ex.  232  ;  38  L.  J.  Ex.  138  ;   17  W.  R.   805  ;   20  L.   T. 

675. 

6  Harrison  v.  Bush,  5  E.  &  B.  350  ;  1  Jur.  N.  S.  846  ;  25  L.  J.  Q.  B.  25  ;  Brett  v. 
Watson,  20  W.  R.  723  ;  Kershaw  v.  Bailey,  1  Ex.  743  ;  17  L.  J.  Ex.  129  ;  Scarll  v. 
Dixon,  4  F.  &  F.  250  ;  Pater  v.  Baker,  3  C.  B.  831  ;  16  L.  J.  C.  P.  124 ;  11  Jur.  370. 

(a)  Express  malice  is  shown  either  to  nan,    35  Wis.   321  ;    s.   c.    27  "Wis.  610. 

ao-n-ravate  damages  (Fowler  v.  Gilbert,  38  It  cannot  be  shown  for  the  purpose  of  prov- 

Mkh.  292)  or  to  rebut  the  inference  arising  ing  publication  by  the  defendant  of  the 

from  a  qualified  privilege.    Wilson  v.  Noo-  defamation.      State   v.    Riggs,    39  Conn. 

238 


EXTRINSIC  e\t:dexce. 


:71 


that  there  were  former  disputes  between  them,  that  defendant 
liad  formerly  been  in  the  plaintiff's  employ,  and  that  plaintiff  luid 


498.     But  it  was,  it  may  be  remarked,  an 
odd  slip  in  so  accurate  a  lawyer  as  Mr. 
Justice  Bronson  to  say  that  express  malice 
is  important  only  to  overturn  a  supposed 
privilege,  when  in  the  same  connection  he 
proceeds  to  mention  extrinsic  tacts  which 
may  be  shown  to  enhance  damages.     Koot 
V.  Lowndes,    6  Hill,  518,  520.     So  much 
by  way  of  introduction  to  the  subject  of 
the  present  note.     We  have  elsewhere  seen 
{a7Ue,  p.  6)  tliat  malice  is  shown  in   the 
first   instance   when    the  plaintiff  proves 
that  the  defendant  has  published  of  him 
language  of  a  certain  well-ascertained  char- 
acter.    Now  express  malice  is  malice  to  be 
specifically  proved  ;    that   is,  it  is  to  be 
proved  by  evidence  not  contained  in  the 
language  itself,  though  sometimes   sever- 
ity  of    defamation   as   seen   only   in   the 
charge     imputed    is    treated    as    express 
malice.     See  cases  near  end  of  this  note. 
We  have  suggested  in  the  note  referred  to 
that  it  would  be  well  not  to  trouble  the 
jury  with  the  meaning  of  the  term  in  such 
cases,  simply  instructing  them  (in  accord- 
ance with  all  the  authorities)  that  if  they 
find  the  publication  of  the  actionable  words 
alleged  they  must  give  a  verdict  for  the 
plaintilf,  and  that  too  witli  vindictive  dam- 
ages if  they  deem  the  charge  outrageous. 
This  supposes  of  course  that  no  privilege  or 
extenuating  facts  are  in  (j^uestion.    Express 
malice  then  becomes  malice  shown  aliunde. 
What  external  evidence  shall  be  suffi- 
cient to  establish  this  express  malice  ?     In 
the  form  of  a  general  answer  to  the  ques- 
tion it  may  be  said  (in  language  substan- 
tially of  judicial  authority  directed  to  the 
specific  purpose   of    defining  malice)  that 
evidence  tending  to  show  either  a  direct 
intention  to  injure  the  ])laintitf  or  a  reck- 
less disregard  of  his  rights  and  of  the  con- 
sequences that  may  result  to  him  may  be 
adduced  to  prove  malice.    Gott  v.  Pulsifer, 
122   Mass.    235,  Gray,  C.J.,    citing    Com- 
monwealth V.  Bonner,  9  Met.  410  ;  Moore 
V.  Stevenson,  27  Conn.  14  ;  Hibbs  v.  Wil- 
kinson, 1  Fost.  &F.  608,  610;  Paris  r.  Le- 
vy, 2  Fost.  &  F.  71,  74  ;  s.  c.  9  C.  B.  N.  S. 
342,   350.     So  Burt  v.  McBain,  29  Mich. 
260.     It  will  be  observed  that  this  propo- 


sition is  in  the  disjunctive  ;  it  is  not  ne- 
cessary to   prove  any  actual  intention  to 
injure   the    plaintiff.      Gott    i'.    Pulsifer, 
supra ;  Barr  v.  Moore,  87  Penn.  St.  3c5  ; 
Pennington  v.  Meeks,  46  Mo.  217  ;  Buck- 
ley V.   Knapp,  48   Mo.    152 ;    Kodgers  v. 
Kline,  56  Miss.  808  ;  Scripps  v.  Pieilly,  38 
Mich.  10  ;    s.  c.  35  Mich.   372  ;    Burt  v. 
McBain,  29  Mich.   260  ;    Haley  v.   State, 
63  Ala.  81,  87.     So  in  an  indictment  for 
libel.       Commonwealth    v.    Morgan,     107 
Mass.    199.       This   reckless   disregard   of 
the  rights  of  the  party  defamed  and  of  the 
consequences  that  may  result  to  him  may 
be  shown  in  a  variety  of  ways,  the  most 
common  of  which  appear  in   actions  for 
libel  against  newspapers.     Now  ic  may  be 
stated  in  the  outset  that  the  publishers, 
editors,  and  writers  of  newspaper  articles 
or  paragraphs  have  no  immunity   (apart 
from  statute)  from. prosecution  oractionnot 
enjoyed  by  citizens  generallj'.     Foster  v. 
Scripps,  39  Mich.  376  ;  s.  c.  41  Mich.  742; 
Snyder  v.  Fulton,  34  Md.  129  ;  Buckleys. 
Knapp,  48  Mo.   152  ;   Storey  v.  Wallace, 
60  111.  51;  Sweeney  v.  Baker,  13  W.  Va. 
158  ;  Commonwealth  v.  Morgan,  107  Mass. 
199  ;  Smart  v.  Blanchard,  42  N.  H.  137  ; 
Huff  (J.  Bennett,  4  Sandf.   120;    Dunn  v. 
Hall,    1   Ind.    344  ;    Andres   v.   Wells,    7 
Johns.   260  ;   Curtis  v.    Mussey,    6   Gray, 
261  ;    Sheckell  v.  Jackson,   10  Cush.   25. 
The   publisher   of  a   newspaper  is  liable 
either  civilly  or  criminally,  or  doubtless 
in  both  ways,  for  defamation  published  in 
his  paper  though  he  was  ignorant  of  the 
fact.     Dunn  v.  Hall,  s^ipra  ;  Huff"  r.  Ben- 
nett, supra;   Commonwealth  v.  Jlorgan, 
sujn-a ;  Storey  v.  Wallace,  60  111.  51. 

With  regard  now  to  the  matter  of  reck- 
lessness, or  what  is  perhaps  the  same  thing 
in  this  connection,  carelessness,  it  is  laid 
down  that  an  allegation  of  carelessness  in 
the  publication  of  a  newspaper  libel  is 
supported  by  evidence  of  particular  in- 
stances of  want  of  care  in  the  publication 
of  articles  in  the  paper  by  the  same  party. 
Scripps  V.  Reilly,  35  Mich.  371.  So  also 
that  the  circumstances  may  be  shown  con- 
cei'ning  the  preparation  and  publication  of 
the  particular  article,  so  far  as  that  may 

239 


*271 


MALICE. 


been  compelled  to  dismiss  him  for  misconduct,  (a)  &c.  &c.    Any- 
thins:  defendant  has  ever  said   or  done  with  reference  to   the 


have  been  done  in  undue  haste;  and  even 
the  general  management  of  the  newspaper. 
lb. ;  a.  c.  38  Mich.  10.  But  so  far  as 
evidence  is  to  be  drawn  from  the  publica- 
tion of  other  articles  in  a  careless  maimer 
the  evidence  should  relate  to  articles  pub- 
lished near  in  time  to  the  one  in  question. 
lb.  And  it  is  further  declared  that  the 
size  and  importance,  character  and  circu- 
lation of  the  newspaper  may  be  taken  into 
the  account  in  determining  of  the  degree 
of  care  to  be  exercised  in  supervising  the 
publication  of  its  contents.  The  charac- 
ter again  of  the  paper  may  be  shown  irre- 
spective of  the  truth  or  falsity  of  the  ar- 
ticles printed  in  it  by  producing  the  paper 
itself.  If  thus  judged  it  appear  to  the 
jury  to  bear  a  low  character  the  jury  will 
be  permitted  to  find  that  the  publication 
in  the  particular  case  was  reckless  or  care- 
less, lb.  On  the  other  hand  to  cut  down 
the  degree  of  malice  which  the  jury  might 
otherwise  be  permitted  to  find  and  thus  to 
mitigate  the  damages,  evidence  is  admis- 
sible on  the  part  of  the  publisher  of  the 
newspaper  that  he  had  exercised  caution 
as  to  the  article,  had  made  reasonable  in- 
quiry, and  had  becoine  satisfied  of  its 
truth  before  he  published  it.  Such  evi- 
dence will  disentitle  the  plaintiff  to  recover 
the  amount  of  damages  he  might  other- 
wise lawfully  claim.     lb. 

But  while  it  is  not  necessary  that  evi- 
dence of  actual  intent  to  injure  the  plain- 
tiff should  be  produced  to  constitute  this 
malice  aliunde,  it  is  necessary  that  the 
evidence  should  tend  to  show  malice  upon 
the  particular  occasion.  General  malevo- 
lence is  not  sufficient ;  the  particular 
wrong  should  have  been  inspired  of  malice, 
and  evidence  that  the  defendant  hates  men 
generally  is  deemed  incompetent  to  show 
that  he  was  actuated  by  malice  in  the  case 
in  question.  Howard  v.  Sexton,  4  Comst. 
157  ;  Haley  v.  State,  63  Ala.  89.  See  Pen- 
nington V.  Meeks,  46  Mo.  217  ;  Barr  v. 
Hack,  46  Iowa,  308.  Hence  in  this  view 
evidence  of  the  publication  by  the  defend- 


ant of  other  slanders  of  different  import 
from  the  one  in  suit  or  upon  others  than 
the  plaintiff  is  not  admissible.  lb.  But 
perhaps  such  evidence  in  connection  with 
facts  leading  to  the  particular  case  might 
be  admissible,  e.g.  to  rebut  a  supposed 
privilege,  especially  where  the  other  pub- 
lications were  also  made  against  the  plain- 
tiff. The  general  conduct  of  the  defend- 
ant towards  the  plaintiff  exhibited  on 
numerous  occasions  though  not  on  the 
particular  occasion  might  in  connection 
with  such  other  slanders  beget  a  just  in- 
ference of  express  malice. 

There  is  however  a  serious  objection  to 
the  admission  of  evidence  of  other  slanders 
upon  the  plaintiff  or  upon  other  persons 
when  that  evidence  is  offered  for  the  pur- 
pose of  furnishing  the  basis  for  enhanced 
damages  ;  and  that  is,  that  the  jury  will 
be  very  apt  consciously  or  unconsciously 
to  give  the  plaintiff  damages,  if  they  see 
fit  to  award  either  punitive  or  large  com- 
pensatory damages,  for  those  other  defam- 
atory publications,  which  of  course  are  not 
now  the  subject  of  suit.  On  this  ground 
it  has  often  been  held  that  the  publication 
of  other  libels  or  slanders,  that  is  of  libels 
or  slanders  of  different  import  from  the 
one  in  suit,  cannot  be  shown  in  evidence. 
Frazier  v.  MoCloskey,  60  N.Y.337;  Root  v. 
Lowndes,  6  Hill,  518  ;  Howard  v.  Sexton, 
4  Comst.  157  ;  Taylor  v.  Kneeland,  1  Doug. 
(Mich.)  67  ;  Bodwelli;.  Swan,  3  Pick.  376; 
Leonard  v.  Pope,  27  Mich.  145.  Contra 
in  Connecticut.  State  v.  Figgs,  39  Conn. 
498  ;  Swift  v.  Dickerman,  31  Conn.  285 
(where  the  other  defamation  had  already 
been  recovered  for).  See  Williams z'. Miner, 
18  Conn.  464 ;  Mix  v.  Woodward,  12 
Conn.  262  ;  Ward  v.  Dick,  47  Conn.  300  ; 
Stearns  v.  Cox,  17  Ohio,  590  ;  Bartow  v. 
Brands,  3  Green  (N.  J.),  248  ;  Brittian  r. 
Allen,  2  Dev.  120  ;  Elliott  v.  Boyles,  31 
Penn.  St.  65  ;  Miller  v.  Kerr,  2  McCord, 
285.  The  jury  may  indeed  be  instructed 
in  such  cases  that  they  must  not  give 
damages  for  the   other   defamation,   that 


(a)  But  not  by  evidence  of  a  difficulty  between  the  defendant  and  the  plaintiff's 
father.     Stowell  v.  Beagle,  57  HI.  97. 

240 


EXTRINSIC   EVIDENCE. 


271 


plaintiff  may  be  urged  as  evidence  of  malice.     Indeed,  it  is  very 
difficult  to  say  what  possible   evidence  is  inadmissible  on  this 


is  introduced  in  evidence  merely  to  show 
the  quo  aniuio  of  the  del'araiition  sued 
for  ;  but  as  has  often  been  remarked  such 
instruction  will  be  wasted  upon  the  av- 
erage (perhaps  even  upon  a  highly  in- 
telligent) jury.  Root  v.  Lowndes,  6  Hill, 
518  ;  Thomas  v.  Croswell,  7  Johns.  264. 
On  the  other  hand  it  has  generally  been 
held  that  evidence  of  repeating  the  same 
publication  or  substantially  the  same  pub- 
lication is  admissible  to  prove  express 
malice  and  enhance  damages.  Robbins  v. 
Fletclier,  101  Mass.  115  ;  Downs  v.  Haw- 
lev,  112  Mass.  237;  Baldwin  v.  Soule,  6 
Gray,  321  ;  Whittemore  v.  Weiss,  33  Mich. 
3i8  ;  Fowler  v.  Gilbert,  38  Jlich.  292  ; 
Leonard  v.  Pope,  27  Mich.  145  ;  Barr  v. 
Moore,  87  Penn.  St.  385  ;  Root  v.  Lowndes, 
6  Hill,  518  ;  Campbell  v.  Butts,  3  Comst. 
173  ;  Howard  v.  Sexton,  4  Comst.  157  ; 
Rockwell  I'.  Brown,  36  N.  Y.  207  ;  Thomas 
V.  Fischer,  71  HI.  576  ;  Stowell  v.  Beagle, 
79  HI.  525  ;  Hatch  v.  Potter,  2  Gilm.  725  ; 
Beasley  v.  Meigs,  16  HI.  139  ;  Spencer  v. 
McMasters,  ih.  405  ;  Norris  v.  Elliot,  39 
Cal.  72  ;  Severance  v.  Hilton,  32  N.  H. 
289  ;  Symonds  v.  Carter,  ib.  458  ;  Meyer 
V.  Bohlfiug,  44  Ind.  238  ;  McGlennery  v. 
Keller,  3  Blackf.  488  ;  Throgmorton  v. 
Davis,  4  Blackf.  174;  Swift  v.  Diekerman, 
31  Conn.  285;  State  v.  Riggs,  39  Conn. 
498;  Ward  v.  Dick,  47  Conn.  300.  Indeed 
it  is  held  that  malice  may  be  shown  by 
other  slanders  conveying  the  same  impu- 
tation upon  the  plaintiff  though  in  sub- 
stantially dilferent  language.  Downs  v. 
Hawley  and  Baldwin  v.  Soule,  sujjra.  See 
Brown  v.  Barnes,  39  Mich.  211  ;  Leonard 
V.  Pope,  27  Mich.  145.  Of  course  it  mat- 
ters not  that  the  defamation  was  repeated 
in  a  foreign  tongue,  if  to  persons  who 
understood  it.  Schmisseuru.  Kreilich,  92 
HI.  347  ;  Townshend,  Slander,  §  392. 

The  distinction  between  the  admissi- 
bility of  other  defamation  upon  the  plain- 
tiff different  in  character  from  that  in  suit 
and  of  the  repetition  of  the  particular 
defamation  sued  for,  is  put  (by  some 
of  the  courts  at  least)  upon  the  ground 
that  the  repetition  of  a  slander  or 
a  libel  and  the  original  offence  may  be 
treated  as  but  one  wrong,  and  (the  repeti- 


tion being  used  in  evidence)  all  barred  by 
the  one  judgment  (Root  v.  Lowndes,  6 
Hill,  518  ;  Frazier  v.  McCloskey,  60  N.  Y. 
337)  ;  which  obviously  could  not  be  true 
of  the  publication  of  substantially  different 
defamation.  But  mistake  should  not  be 
made  concerning  the  ground  thus  taken 
for  the  distinction.  It  is  not  n)eant  that 
all  or  any  subsequent  repetition  upon  a 
distinct  occasion  is  necessarily  barred  by 
the  judgment  rendered  concerning  the  origi- 
nal defamation.  Not  only  in  principle 
but  upon  authority,  and  that  too  of  the 
courts  of  the  State  in  which  the  ground  re- 
ferred to  is  taken,  every  repetition  made 
at  a  different  time  affords  the  same  cause 
of  action  as  the  original  publi(--ation. 
Woods  V.  Pangburn,  75  N.  Y.  495 ;  Rock- 
well V.  Brown,  36  N.  Y.  207  ;  Swift  v. 
Diekerman,  31  Conn.  285.  See  Fox  v. 
Wilson,  3  Jones,  485  ;  Coleman  v.  Plaj-- 
sted,  36  Barb.  26.  Only  such  repetition 
is  barred  as  is  made  use  of  in  evidence  upon 
the  particular  trial;  and  that  is  treated  as 
barred  because  (as  we  have  said)  the  jury 
are  iiermitted  to  do  what  they  probably 
would  do  anyhow,  to  wit,  give  damages 
for  the  repetition  with  the  original  publi- 
cation. That  repetition  is  not  of  itself 
barred  in  New  York  by  judgment  upon 
the  original  act  is  further  seen  in  the  fact 
that  if  it  occur  after  suit  it  is  always  ground 
for  an  action ;  in  that  case  the  repetition 
not  being  admissible  in  evidence  in  the 
suit  begun  before  it  was  published.  Frazier 
V.  jMcCloskey,  60  N.  Y.  337  ;  Keenholts  v. 
Becker,  3  Denio,  346  ;  Daly  v.  Byrne,  77 
N.  Y.  182,  188  ;  Distin  v.  Rose,  69  N.  Y. 
122.  Repetition  after  suit  is  however  held 
or  treated  as  admissible  with  reference 
solely  to  the  defamation  sued  for,  even  to 
the  giving  vindictive  damages,  the  jury 
being  duly  cautioned  against  awarding 
damages  for  anything  else,  in  the  follow- 
ing cases:  Stitzell  v.  Reynolds,  67  Penn. 
St.  54;  Hinkle  v.  Davenport,  38  Iowa,  355; 
Taylor  v.  Moran,  4  Met.  (Ky.)  127  ;  Saun- 
ders V.  Baxter,  6  Heisk.  369  :  Norris  v. 
Elliot,  39  Cal.  72  :  Kean  v.  JIcLaughlin, 
2  Serg.  &  R.  469  ;  Hatch  v.  Potter,  7  111. 
725  ;  Sonneborn  v.  Bernstein,  49  Ala.  168  ; 
Chamberlain  v.  Vance.  51  Cal.  79  ;  Parmer 
16  241 


271 


MALICE. 


issue.     The  plaintiff  has  to  show  what  was  in  the  defendant's 
mind  at  the  time  of  publication,  and  of  that  no  doubt  the   de- 


V.  Anderson,  33  Ala.  78  ;  Bodwell  v.  Swan, 
3  Pick.  376  ;  Schoonover  v.  Rowe,  7  Blackf. 
202  ;  Throgmorton  V.  Davis,  4  Blackf.  174  ; 
McGlenneiy  v.  Keller,  3  Blackf.  488  ;  Wil- 
liams V.  Harrison,  3  Mo.  411.  See  Meyer 
V.  Bohlting,  44  Ind.  238.  The  same  rule 
perhaps  formerly  obtained  in  New  York. 
Kennedy  v.  Gilford,  19  Wend.  296  ;  Innian 
V.  Foster,  8  Wend.  602,  609.  But  that  is 
not  the  case  now,  as  Frazier  v.  McCloskey 
and  the  othercasescitedsif/^ra  have  decided. 
The  New  York  courts  now  hold  all  defama- 
tory words  or  language  admissible  upon  the 
question  of  express  malice,  to  enhance  dam- 
ages, which  cannot  at  the  time  be  made  the 
subject;)cr  sc  of  an  action  for  slander  or  libel. 
Frazier  v.  McCloskey  and  Root  v.  Lowndes, 
supra;  Keenholts  v.  Becker,  3  Denio,  346. 
Within  this  rule  is  embraced  not  only  repeti- 
tion of  the  same  defamation  before  the  suit, 
but  also  other  and  different  defamation 
barred  by  limitation  (Inman  v.  Foster,  8 
Wend.  602  ;  Titus  v.  Sumner,  44  N.  Y.  266; 
Distil)  V.  Rose,  69  N.  Y.  122).  So  in  other 
States,  Flaniingham  v.  Boucher,  Wright, 
746 ;  Throgmorton  v.  Davis,  4  Blackf. 
174;  Randall  v.  Holsenbuke,  3  Hill  (S. 
Car.),  175;  Botelar  v.  Ball,  1  Md.  173; 
and  also  other  publications  not  actionable 
per  se  ( Root  v.  Lowndes ;  Thomas  v.  Cros- 
well,  7  Johns.  264  ;  Inman  v.  Foster),  and 
doubtless  defamatory  publications  already 
recovered  for,  as  in  Swift  v.  Dickerman, 
31  Conn.  285.  Tlie  admissibility  however 
of  words  barred  by  limitation  or  by  action, 
if  not  of  other  defamatory  language  not  ac- 
tionable per  se,  is  within  all  the  mischief 
of  admitting  any  evidence  of  repetition. 
Lincoln  v.  Chrisman,  10  Leigh,  338.  In- 
deed the  mischief  appears  greater,  for  if  it 
is  improper  to  give  the  jury  an  opportunity 
not  unlikely  to  be  im])roved  of  giving  dam- 
ages for  words  not  sued  upon,  it  must  a 
fortiori  be  improper  to  give  them  an  op- 
portunity (not  less  likely  to  be  embraced) 
of  giving  damages  which  the  plaintiff  has 
no  right  in  any  event  to  demand.  If  tlie 
question  were  res  nova  it  would  appear 
better  to  reject  all  evidence  to  be  drawn 
either  from  other  defamatory  publica- 
tions or  from  repetition  of  the  one  in  suit, 
whether  such  other  publication  or  repeti- 

242 


tion  preceded  or  followed  the  suit  in  which 
the  evidence  should  be  offered,  provided 
the  evidence  were  offered  to  enhance  the 
plaintiffs  damages.  But  if  the  evidence 
were  offered,  ejj.  to  rebut  an  inference  of 
the  want  of  malice  drawn  from  proof  of  a 
qualified  privilege,  then  there  would  be 
less  danger  in  receiving  it;  or  at  all  events 
there  would  be  a  stronger  reason,  a  reason 
almost  imperative  in  some  cases,  for  re- 
ceiving it.  See  Root  v.  Lowndes,  6  Hill, 
518  ;  Letton  v.  Young,  2  Met.  (Ky.)  558  ; 
Beardsley  v.  Bridgman,  17  Iowa,  290 ; 
Schrimper  v.  Heilman,  24  Iowa,  505  ;  Mc- 
Almont  V.  McClelland,  14  Serg.  &  R.  359  ; 
Scott  V.  Mortsinger,  2  Blackf.  454  ;  Burson 
V.  Edv,-ards,  1  Ind.  164.  A  fortiori  to  re- 
but the  inference  of  a  privilege  for  words 
alleged  in  one  count,  words  alleged  in  an- 
other may  be  proved  to  show  express  malice. 
Clark  V.  Brown,  116  Mass.  504;  Robbins 
V.  Fletcher,  101  Mass.  115  ;  Baldwin  v. 
Soule,  6  Gray,  321  ;  Markham  v.  Russell, 
12  Allen,  573.  And  with  regard  to  the 
question  of  malice  irrespective  of  privilege, 
if  the  existence  of  malice  has  been  ren- 
dered doubtful  by  evidence  of  the  circum- 
stances under  which  the  alleged  defamation 
was  published,  it  is  considered  proper  to 
permit  the  introduction  of  evidence  of  the 
repetition  of  the  language  upon  other  oc- 
casions to  make  clear  the  animxis  of  the 
publication  in  suit.  Hinkle  v.  Davenport, 
38  Iowa,  355.  But  such  evidence  must 
often  be  of  doubtful  relevancy,  and  its  ad- 
mission should  be  narrowly  scanned.  The 
repetition  when  sought  to  pro})  up  the 
plaintiffs  action  in  such  a  case  should  be 
near  the  time  of  the  defamatory  language 
in  suit  (comp.  Scripps  v.  Reilly,  35  Mich. 
371,  supra,  concerning  evidence  of  careless 
publication),  or  it  should  in  some  way  be 
connected  with  it,  as  for  example  by  an 
admission  of  malice.  Then  again  evidence 
of  repetitions  within  similar  limits  may  be 
proved,  it  seems,  to  rebut  the  effect  of  at- 
tempts to  prove  mitigating  circumstances. 
Thomas  v,  Fischer,  71  111.  576.  In  many 
of  tlie  cases  the  reported  facts  do  not  show 
for  what  pui-pose  the  evidence  was  intro- 
duced :  Prinie  v.  Eastwood,  45  Iowa,  640  ; 
I^Ieyer  v.  Bohlfing,    44  Ind.  238  ;  but  in 


EXTRINSIC   EVIDEXCE. 


271 


fendant's  acts  and  words  on  that  occasion  are  the  best  evidence. 
But  if  plaintiff  can  prove  that  at  any  other  time,  before  or  after, 
defendant  had  any  ill-feeling  against  him,  that  is  some  evidence 


those  States  it  is  clear  from  cases  already 
cited  that  the  evidence  could  not  have 
been  admitted  to  give  damages  springing 
from  the  repeated  defamation. 

The  result  appears  to  be  (1 )  that  evi- 
dence of  defamation  against  others  is  never 
admissible  unless  perhaps  clearly  connect- 
ed with  the  defamation  in  suit  ;  (2)  that 
by  the  better  authorities  evidence  of  the 
publication  of  defamation  upon  the  plain- 
tiff other  in  substance  than  that  sued  for 
is  not  admissible,  on  grounds  of  policy  ; 

(3)  that  evidence  of  the  repetition  of  the 
defamation  sued  for  is  admissible  in  New 
York  to  enhance  the  plaintift"s  damages  if 
the  same  cannot  be  the  subject  of  another 
action,  with  proper  caution  to  the  jury  no 
doubt  against  giving  damages  for  defamatory 
language  already  barred  before  the  suit  ; 

(4)  that  in  other  States  the  same  evidence 
as  that  just  mentioned  is  admissible  and 
also  evidence  of  repetition  after  suit,  with 
proper  caution  to  the  jury  not  to  give 
damages  for  that  ;  (5)  that  other  defama- 
tory publications  upon  the  plaintiff  and 
repetitions  of  the  chaiges  in  suit  may  be 
shown  to  rebut  the  inference  arising  from 
proof  of  a  qualified  privilege  ;  (6)  that  the 
same  kind  of  evidence  may  be  produced 
within  suitable  limits  where  it  is  rendered 
doubtful  by  the  circumstances  attending 
the  publication  whether  the  defendant  was 
or  was  not  actuated  by  malice  ;  (7)  and 
that  the  same  kind  of  evidence  may  be  in- 
troduced within  limits  where  the  defend- 
ant has  brought  forward  evidence  tending 
to  show  ground  of  mitigation.  Concern- 
ing the  effect  of  repeating  the  charge  in  a 
plea  of  the  truth,  see  post,  pp.  274,  485. 

Two  modes  of  showing  malice  aliunde 
have  now  been  considered,  to  wit,  by 
proof  of  reckless  publication  antl  by  proof 
of  repetition  of  the  defamation  sued  for. 
The  other  modes  may  be  shortly  dis])Osed 
of.  The  most  obvious  of  these  is  that  of 
admission.  Saunders  v.  Baxter,  6  Heisk. 
369,  merely  mentioning  that  mode  of 
proof ;  Fowler  v.  Gilbert,  38  Mich.  292, 
where  it  is  said  that  malice  is  admitted  by 
the  defendant's  saying  that  the  charge  in 
suit  would  not  have  been  started  had  the 


plaintiff  dealt  differently  with  him.  Ex- 
jjress  malice  is  shown  again  by  evidence 
that  the  defendant  exhibited  forwardness 
and  zeal  in  making  or  in  spreading  the 
publication.  This  follows  from  what  has 
already  been  said  concerning  careless  pub- 
lication. See  Burt  v.  McBain,  29  Mich. 
260.  Malice  aliunde  is  also  shown  by 
evidence  that  the  defendant  knew  the 
charge  made  to  be  false.  Atwill  v.  Mack- 
intosh, 120  Mass.  177.  Also  by  evidence 
that  he  had  no  ground  in  reason  to  be- 
lieve the  charge  true,  as  where  he  could 
have  relied  only  upon  what  all  rational 
men  would  know  was  not  trustworthy. 
Atwill  V.  Mackintosh,  supra. 

But  a  rumor  may  be  sufficiently  trust- 
worthy to  justify  mitujation.  Bailey  v. 
Kalamazoo  Pub.  Co.,  40  Mich.  251.  See 
also  Willover  v.  Hill,  72  X.  Y.  36  ;  Hay- 
ner  v.  Cowden,  27  Ohio  St.  292  ;  Hamil- 
ton V.  Eno,  81  N.  Y.  116  ;  and  ante,  p. 
162,  note  ;  j)ost,  p.  299. 

Again  malice  may  be  shown  by  evidence 
that  a  plea  of  the  truth  not  sustained  was 
pleaded  without  any  ground  for  the  same. 
Distin  V.  Rose,  69  N.  Y.  122  ;  Chamber- 
lain V.  Vance,  51  Cal.  79.  (On  this  point 
see  further,  post,  p.  485. )  Express  malice, 
as  the  term  is  commonly  used,  may  also 
be  found  in  excess  of  imputation.  Atwill 
V.  Mackintosh,  120  Mass.  177  ;  Gott  v. 
Palsifer,  122  Mass.  235.  But  this,  as  we 
have  elsewhere  said,  is  not  malice  aliunde ; 
unless  indeed  the  excess  is  shown  (not  in 
the  words  but)  in  the  manner  of  the  de- 
fendant or  in  the  mode  in  which  he  effect- 
ed the  publication  or  in  other  external 
facts  indicating  excess.  See  Saunders  v. 
Baxter,  6  Heisk.  369.  On  the  other  hand 
malice  is  not  shown  by  evidence  of  a  diffi- 
culty between  the  defendant  and  the  plain- 
tiff's  father.     Stowell  v.   Beagle,   57   HI. 

97. 

It  matters  not  finally  that  the  facts  of- 
fered in  evidence  of  malice  transpired  at  a 
time  which  would  bar  an  action  for  slan- 
der or  libel,  the  subject-matter  of  the  suit 
being  within  the  period  of  limitation. 
Harman  v.  Harmon,  61  Maine,  233  ;  Titus 
V.  Sumner,  44  N.  Y.  266  ;  supra. 

243 


*  271  ]MALICE. 

that  the  ill-feeling  existed  also  at  the  date  of  publication  ;  there- 
fore all  defendant's  acts  and  deeds  that  point  to  the  existence  of 
any  such  ill-feeling  at  any  date,  are  evidence  admissible  for  what 
they  are  worth.  In  fact,  whenever  the  state  of  a  person's  mind 
on  a  particular  occasion  is  in  issue,  everything  that  can  throw 
any  light  on  the  state  of  his  mind  then  is  admissible, 

*  272    although  it  happened  on  some  *  other  occasion. ^ 

Thus  any  other  words  written  or  spoken  by  the  defend- 
ant of  the  plaintiff,  either  before  or  after  those  sued  on,  or  even 
after  the  commencement  of  the  action,  are  admissible  to  show  the 
miimus  of  the  defendant ;  and  for  this  purpose  it  makes  no  differ- 
ence whether  the  words  tendered  in  evidence  be  themselves  ac- 
tionable or  not,  or  whether  they  be  addressed  to  the  same  party 
as  the  words  sued  on  or  to  some  one  else.^  Such  other  words 
need  not  be  connected  with  or  refer  to  the  libel  or  slander 
sued  on  ;  provided  they  in  any  way  tend  to  show  malice  in  de- 
fendant's mind  at  the  time  of  publication.^ 

And  not  only  are  such  other  words  admissible  in  evidence,  but 
also  all  circumstances  attending  their  publication,  the  mode  and 
extent  of  their  repetition,  &c.;  the  more  the  evidence  approaches 
proof  of  a  systematic  practice  of  libelling  the  plaintiff,  the  more 
convincing  it  will  bei  The  jury  no  doubt  should  be  told,  when- 
ever the  other  words  so  tendered  in  evidence  are  in  themselves 
actionable,  that  they  m.ust  not  give  damages  in  respect  of  such 
other  words,  because  they  might  be  the  subject-matter  of  a  sep- 
arate action  ;  ^  but  the  omission  by  the  Judge  to  give  such  a  cau- 
tion will  not  amount  to  a  misdirection.^  But  the  defendant  is 
always  at  liberty  to  prove  the  truth  of  such  other  words  so 
given  in  evidence ;  for  he  could  not  p?6;acZ  a  justification 

*  273    *  as  to  them,  as  they  were  not  set  out  on  the  record.'' 

It  must  be  remembered    that  this   evidence  of  former  or  subsequent 
defamation  is  only  admissible  to  determine    quo  animo  the  words  sued  on 

1  See  R.  V.  Francis,  L.  R.  2  C.  C.  R.  128  ;  and  Blake  v.  Albion  Assurance  Society, 
4  C.  P.  D.  94  ;  48  L.  J.  C.  P.  169  ;  27  W.  R.  321  ;  40  L.  T.  211. 

2  Pearson  v.  Lemaitre,  5  M.  &  Gr.  700  ;  12  L.  J.  Q.  B.  253  ;  7  Jur.  748  ;  6  Scott, 
N.  R.  607  ;  Moad  v.  Daubigny,  Peake,  168. 

8  Barrett  v.  Long,  3  H.  L.  C.  395  ;  7  Ir.  L.  R.  439  ;  8  Ir.  L.  R.  331. 
4  Bond  V.  Douglas,  7  C.  &  P.  626  ;  Barrett  v.  Long,  3  H.  L.  C.  p.  414. 
^  Pearson  v.  Lemaitre,  sujira. 

«  Darby  v.  Ouseley,  1  H.  &  X.  1  ;  25  L.  J.  Ex.  227  ;  2  Jur.  N.  S.  497. 
^  Stuart  V.  Lovell,  2  Stark.  93  ;  "Warne  v.  Chadwell,  2  Stark.  457. 

244 


PREVIOUS   LIBELS.  *  273 

were  published ;  that  is,  they  are  only  admissible  when  malice  in  fact  is  in 
issue.  If  there  is  no  question  of  malice,  no  such  other  libels  would  be 
admissible,  unless  they  had  immediate  reference  to  the  libel  sued  on  ;  and 
even  then  it  would  be  better  that  they  should  be  set  out  in  the  statement 
of  claim.^  For  such  other  libels  are  clearly  independent  substantive 
causes  of  action,  and  should  not  be  used  unfairly  to  enhance  the  damages 
in  this  action.  It  has  sometimes  been  held  that  even  Avhen  malice  is  in 
issue  other  words  could  not  be  given  in  evidence  if  they  themselves  were 
actionable  ;  ^  but  these  cases  are  expressly  overruled,  or  explained  away  by 
Tindal,  C.J.,  in  5  M.  &  Gr.  719,  720.  And  see  the  remarks  of  Lord  Ellen- 
borough  in  RusteU  v.  Macquister  j  ^  and  of  Jervis,  C.J.,  in  Camfield  i;. 
Bird.*  And  it  is  now  clear  law  that  whenever  the  intention  of  the  defend- 
ant is  equivocal,  that  is,  whenever  the  question  of  malice  or  bona  fides  is 
properly  about  to  be  left  to  the  jury,  evidence  of  any  previous  or  subse- 
quent libel  is  admissible,  even  though  it  be  more  than  six  years  prior  to 
the  libel  sued  on  ;  and  even  though  a  former  action  has  been  brought  for 
the  libel  now  tendered  in  evidence  and  damages  recovered  therefor.^  The 
law  is  the  same  in  America.^ 

So  if  the  defendant  reasserts  the  libel  in  numbers  of  his  peri- 
odical appearing  after  the  commencement  of  the  action  ; " 
or  in  private  letters  written  after  action  ;  ^  *  or  if  the  de-  *  274 
fendant  continues  to  sell  copies  of  the  libel  at  his  shop  up 
to  two  days  before  the  trial ;  ^  these  facts  are  admissible  as  evi- 
dence of  deliberate  malice,  though  no  damages  can  be  given  in 
respect  of  them.  A  plea  of  justification  may  be  such  a  reasser- 
tion  of  the  libel  or  slander.  No  doubt  where  the  words  are 
privileged,  the  mere  fact  that  a  plea  of  justification  was  put  on 
the  record  is  not  of  itself  evidence  of  malice  sufficient  to  go  to 
the  jury.i*^     But   if  there    be   other    circumstances   suggesting 

1  Finnerty  v.  Tipper,  2  Camp.  72  ;  Stuart  v.  Lovell,  2  Stark.  93  ;  Defries  v.  Davis, 
7  C.  &  P.  112. 

2  Pearce  v.  Ornsby,  1  M.  &  Piob.  455  ;  Syminons  v.  Blake,  ib.  477. 
»  1  Camp.  49,  n.  *  3  0.  &  Kir.  56. 

6  Symmons  v.  Blake,  1  M.  &  Rob.  477  ;  Jackson  v.  Adams,  2  Scott,  599.  See  also 
Charlter  v.  Barret,  Peake,  32  ;  Lee  v.  Huson,  Peake,  223 ;  Jackson  v.  Adams,  2 
Scott,  599. 

6  Fowles  V.  Bowen,  3  Tiffany  (30  N.  Y.  R.),  20. 

^  Chubb  v.  Westley,  6  C.  &  P.  436. 

8  Pearson  v.  Lemaitre,  5  M.  &  Gr.  700. 

9  Plunketti;.  Cobbett,  5  Esp.  136  ;  Barwell  v.  Adkins,  2  Scott,  N.  E.  11  ;  1  M.  & 
Gr.  807. 

10  Wilson  V.  Robinson,  7  Q.  B.  68  ;  Caulfield  v.  Wliitworth,  16  W.  R.  936  ;  18  L. 
T.  527  ;  Brooke  v.  Avrillon,  42  L.  J.  C.  P.  126. 

245 


*  27-1  MALICE. 

malice,  the  plaintiff's  counsel  may  also  comment  on  the  justifica- 
tion pleaded :  and  indeed,  in  special  circumstances,  as  where  the 
defendant  at  the  trial  will  neither  abandon  the  plea,  nor  give  any 
evidence  in  support  of  it,  thus  obstinately  persisting  in  the  charge 
to  the  very  last  without  any  sufficient  reason,  this  alone  may  be 
sufficient  evidence  of  malice.^  (a) 

The  mere  fact  "that  the  words  are  now  proved  or  admitted  to 
be  false  is  no  evidence  of  malice,  unless  evidence  be  also  given 
by  the  plaintiff  to  show  that  the  defendant  knew  they  were  false 
at  the  time  of  publication.^  So  if  a  false  and  groundless  charge 
be  made  against  the  plaintiff,  on  a  privileged  occasion,  but  with- 
out reasonable  or  probable  cause,  this  may  be  left  to  the  jury,  if 
there  be  any  other  circumstance  suggesting  malice ;  ^  but  by 
itself,  it  is  no   evidence  of  malice.^     As  a  general  rule, 

*  275    therefore,  the  plaintiff  cannot  give  any  *  evidence  of  the 

falsity  of  the  charge,  unless  a  justification  be  pleaded  ;  for 
such  evidence  is  no  proof  of  malice,  and  the  truth  of  the  charge 
is  not  in  issue.^ 

But  where  the  parties  have  been  living  in  the  same  house  for 
a  long  time,  as  master  and  servant,  and  the  master  must  have 
known  the  true  character  of  his  servant,  and  yet  has  given  a 
false  one,  there  the  plaintiff  is  allowed  to  give  general  evidence 
of  his  good  character,  and  to  call  other  servants  of  the  defendant 

1  Warwick  v.  Foulkes,  12  M.  &  W.  508  ;  Simpson  v.  Robinson,  12  Q.  B.  513  ;  18 
L.  J.  Q.  B.  73. 

2  Fountain  v.  Boodle,  3  Q.  B.  5  ;  Caulfield  v.  Wkitworth,  16  W.  E.  936  ;  18  L. 
T.  527. 

3  Padmore  v.  Lawrence,  11  A.  &  E.  380. 

«  Clark  V.  Molyneux,  3  Q.  B.  D.  (C.  A.)  237. 

5  Brown  v.  Croome,  2  Stark.  297  ;  Cornwall  v.  Richardson,  1  R.  &  M.  305  ;  Brine 
V.  Bazalgette,  3  Exch.  692  ;  18  L.  J.  Ex.  348. 

(a)  An  unproved  plea  of  the  truth  is  491  ;  Downing  v.  Brown,  3  Col.  571  ; 
probably  at  the  present  day  nowhere  in  Hawver  v.  Hawver,  78  111.  412;  Corbley 
this  country  evidence  necessarily  of  mal-  v.  Wilson,  71  111.  209  ;  Farnam  v.  Childs, 
ice ;  though  formerly  the  rule  of  malice  66  111.  544  ;  Freeman  v.  Tiusley,  50  111. 
prevailed.  The  question  now  turns  upon  497  ;  Chamberlain  v.  Vance,  51  Cal.  79  ; 
the  circumstances  of  the  plea.  See  Distin  Duval  v.  Davey,  32  Ohio  St.  604  ;  Ray- 
V.  Rose,  69  N.  Y.  122  ;  Klinck  v.  Colby,  ner  v.  Kinney,  14  Ohio  St.  237  ;  McCue 
46  N.  Y.  427;  Bush  i>.  Prosser,  11  N.  Y.  v.  Ferguson,  73  Penn.  St.  333;  Gorman 
347,  350;Hix  v.  Drury,  5  Pick.  296;  r.  Sutton,  32  Penn.  St.  247.  For  the  ear- 
Shank  V.  Case,  1  Ind.  170  ;  Swails  v.  lier  rule  see  Braden  v.  Walker,  8  Humph. 
Butcher,  2  Ind.  84  ;  Shirley  v.  Keathy,  4  34 ;  Wilson  v.  Nations.  5  Yerg.  211  ;  Pool 
Coldw.  29  ;  Proctor  v.  Houghtaling,  37  v.  Devers,  30  Ala.  672  ;  Doss  v.  Jones,  6 
Mich.   41 ;  Rausone  v.  Christian,  49  Ga.  Miss.  158 ;  Alderman  v.  French,  1  Pick.  1. 

246 


FALSITY.  *  275 


to  show  that  no  complaints  of  misconduct  were  made  against 
the  pLaintiff  whilst  he  was  in  defendant's  service  ;  such  evidence 
tending  to  show  that  defendant  at  the  time  he  gave  plaintiff  a 
bad  character,  knew  that  what  he  was  writing  was  untrue,  and 
that  is  proof  positive  of  malice.^ 


Illustrations. 

Where  a  master  has  given  a  servant  a  bad  character,  the  circumstances  under  which 
they  parted,  any  expressions  of  ilhvill  uttered  by  the  master  then  or  subsequently,  the 
fact  that  the  master  never  complained  of  the  plaintiff's  misconduct  whilst  she  was  in 
his  service,  or  when  dismissing  her  would  not  specify  the  reason  for  her  dismissal,  and 
give  her  an  opportunity  of  defending  herself,  together  with  the  circumstances  under 
which  the  character  was  given,  and  its  exaggerated  language,  are  each  and  all  evidence 
of  malice.  Kelly  v.  Partington,  4  B.  &  Adol.  700  ;  2  X.  &  M.  460  ;  Jackson  v.  Hop- 
perton,  16  C.  B.  N.  S.  829  ;  12  W.  R.  913  ;  10  L.  T.  529;  ante,  p.  268  ;  Rogers  v. 
Sir  Gervas  Clifton,  3  B.  &  P.  887  ;  ante,  p.  202. 

Defendant  subsecjuently  to  the  slander,  admitted  that  there  had  been  a  dispute 
between  himself  and  the  plaintiff  prior  to  the  slander  about  a  sum  of  £20  which  the 
plaintiff  claimed  from  the  defendant.  At  the  trial,  also,  the  plaintiff  offered  to  accept 
an  apology  and  a  verdict  for  nominal  damages,  if  defendant  would  withdraw  his  plea 
of  justification.  The  defendant  refused  to  withdraw  the  plea,  yet  did  not  attempt  to 
prove  it.  ^cM  ample  evidence  of  malice.  Damages  £40.  Simpson  i;.  Robinson,  12 
Q.  B.  511  ;  18  L.  J.  Q.  B.  73;  13  Jur.  187. 

*  If  it  be  proved  that  any  material  part  of  a  charge  is  false  [and  that  the     *  276 
defendant  knew  it  was  false  at  the  time  he  made  the  imputation],  or  if  the 
charge  be  made  to  an  official  who  has  no  jurisdiction  over  the  matter,  this  is  evidence 
of  malice.     Blagg  i?.  Start,  10  Q.  B.   899  ;  16  L.  J.   Q.   B.  39;  11  Jur.  101  ;  8  L.  T. 
(Old  S.)  135  ;  as  explained  by  WUliams,  J.,  13  C.  B.  352. 

It  is  some  evidence  of  malice  that  plaintiff  and  defendant  are  rivals  in  trade,  or  that 
they  competed  together  for  some  post,  and  plaintiff  succeeded,  and  that  then  defend- 
ant, being  disappointed,  wrote  the  libel.  See  Warman  v.  Hine,  1  Jur.  820  ;  Smith  v. 
Mathews,  1  Moo.  &  Rob.  151. 

The  defendant  wrote  a  letter  to  be  published  in  the  newspaper.  The  careful  editor 
struck  out  all  the  more  outrageous  passages,  and  published  the  remainder.  The  defend- 
ant's manuscript  was  admitted  in  evidence,  and  the  obliterated  passages  read  to  the 
jury,  to  show  the  animus  of  the  defendant.  Tarpley  v.  Blaby,  2  Scott,  642  ;  2  Bing. 
N.  C.  437  ;  1  Hodges,  414. 

Even  though  a  report  of  judicial  proceedings  be  correct  and  accurate,  still  if  it  be 
published  from  a  malicious  motive,  whether  by  a  newspaper  reporter  or  any  one  else, 
the  privilege  is  lost.  Stevens  v.  Sampson,  5  Exch.  D.  53  ;  49  L.  J.  Q.  B.  120  ;  28  W. 
R.  87  ;  41  L.  T.  782. 

A  long  practice  by  the  defendant  of  libelling  the  plaintiff  is  cogent  evidence  of 
malice  ;  therefore  other  libels  of  various  dates,  some  more  than  six  years  old,  some 
published  shortly  before  that  sued  on,  are  all  admissible  to  show  that  the  publication 

1  Fountain  v.  Boodle,  3  Q.  B.  5  ;  2  G.  &  D.  455  ;  Rogers  v.  Sir  Gervas  Clifton,  3 
B.  &  P.  587,  ante,  p,  202. 

247 


*  276  MALICE. 

of  the  culminating  libel  sued  on  was  malicious  and  not  inadvertent.     Barrett  v.  Long, 
3  H.  L.  C.  395  ;  7  Ir.  L.  R.  439  ;  8  Ir.  L.  R.  33L 

A  libel  having  appeared  in  a  newspaper,  subsequent  articles  in  later  numbers  of  the 
same  newspaper,  alluding  to  the  action  and  affirming  the  truth  of  the  prior  libel,  are 
admissible  as  evidence  of  malice.  Chubb  v.  Westley,  6  C.  &  P.  436  ;  Harwell  v. 
Adkins,  1  M.  &  Or.  807  ;  2  Sc.  N.  R.  11  ;  Mead  v.  Daubigny,  Peake,  168. 

So  if  there  be  subsequent  insertions  of  substantially  the  same  libel  in  other  news- 
papers. Delegal  v.  Highley,  8  C.  &  P.  444  ;  5  Scott,  154  ;  3  Bing.  N.  C.  950  ;  3 
Hodges,  158. 

So  if  the  defendant  persists  in  repeating  the  slander  or  disseminating  the  libel  pend- 
ing action.  In  Pearson  v.  Lemaitre,  5  M.  &  Gr.  700  ;  6  Scott,  N.  R.  607  ;  12  L.  J, 
Q.  B.  253  ;  7  Jur.  748  ;  a  letter  was  admitted  which  had  been  written  subsequently  to 
the  commencement  of  the  action,  and  fourteen  months  after  the  libel  complained  of. 
In  McLeod  v.  Wakley,  3  C.  &  P.  311,  Lord  Tenterden  admitted  a  paragraph  published 
only  two  days  before  the  trial. 

Where  the  defendant  verbally  accused  plaintiff  of  perjury,  evidence  that 

*  277     *  subsequently  to  the  slander  defendant  preferred  an  indictment  against  the 

plaintiff'  for  peijury,  which  was  ignored  by  the  grand  jury,  was  received  as 
evidence  that  the  slander  was  deliberate  and  malicious,  although  it  was  a  lit  subject 
for  an  action  for  malicious  prosecution.  Tate  v.  Humphrey,  2  Camp.  73,  n.  And  see 
Finden  v.  Westlake,  Moo.  &  Malkin,  461. 

In  an  action  for  libel  and  slander  on  privileged  occasions,  the  only  evidence  of  malice 
was  some  vague  abuse  of  the  plaintiff",  uttered  by  the  defendant  on  the  Saturday  before 
the  trial  in  a  public-house  at  Rye.  Such  abuse  had  no  reference  to  the  slander  or  the 
libel  or  to  the  action.  Held,  that  this  evidence  was  admissible  ;  but  that  the  judge 
should  have  called  the  attention  of  the  jury  to  the  vagueness  of  the  defendant's  remarks 
in  the  public-house,  to  the  fact  that  they  were  uttered  many  mouths  after  the  alleged 
slander  and  libel,  and  that  therefore  they  were  but  very  faint  evidence  that  the  defend- 
ant bore  the  plaintiff  malice  at  the  time  of  the  publication  of  the  alleged  slander  and 
libel.  A  new  trial  was  ordered.  Costs  to  abide  the  event.  Hemmings  v.  Gasson, 
E.  B.  &  E.  346  ;  27  L.  J.  Q.  B.  252  ;  4  Jur.  N.  S.  834. 


II.  Evidence  of  malice  derived  from  the  mode  and  extent  of  pub- 
lication^ the  terms  employed,  ^c. 

The  plaintiff  is  not  restricted  to  extrinsic  evidence  of  malice ; 
he  may  rely  on  the  words  of  the  libel  itself  and  the  circumstances 
attending  its  publication  ;  or  in  the  case  of  slander  upon  the  ex- 
aggerated language  used,  on  the  fact  that  third  persons  were 
present  who  were  not  concerned  in  the  matter,  &c.  &c.  The  fact 
that  the  defendant  was  mistaken  in  the  information  he  gave  is, 
as  we  have  seen,  no  evidence  of  malice.  The  jury  must  look  at 
the  circumstances  as  they  presented  themselves  to  the  mind  of 
the  defendant  at  the  time  of  the  publication ;  not  at  what  are 
proved  at  the  trial  to  have  been  the  true  facts  of  the  case.  It  is 
a  question  of  bona  fides  :  Did  the  defendant  honestly  believe  that 
248 


INTRINSIC   EVIDENCE.  *  277 

he  had  a  duty  to  perform  in  the  matter,  and  act  under  a  sense  of 
that  duty?  That  other  men  would  not  have  so  acted  is  imma- 
terial. That  shrewder  men  would  have  seen  through  the  tangled 
web  of  facts,  and  have  discovered  that  things  were  not  as 
*they  seemed,  is  absolutely  immaterial.  The  question  is,  *  278 
Did  the  actual  defendant  honestly  believe  what  he  said  ? 
not  whether  a  reasonable  man  so  placed  would  have  believed  it.^ 
The  defendant  will  not  lose  the  privilege  afforded  by  the  occasion 
merely  because  his  reasoning  powers  were  defective.^  "  People 
believe  unreasonable  things  bo7idfide"  says  O'Hagan,  J.,  in  Fitz- 
gerald V.  Campbell.^  Similarly,  the  fact  that  he  relied  upon  hear- 
say evidence  without  seeking  primary  evidence  is  immaterial.* 
Men  of  business  habitually  act  upon  hearsay  evidence  in  matters 
of  the  greatest  importance.  But  this  is  supposing  of  course  that 
the  defendant  is  guilty  of  no  laches,  and  does  not  wilfully  sluit 
his  eyes  to  any  source  of  information.  If,  indeed,  there  were 
means  at  hand  for  ascertaining  the  truth  of  the  matter,  of  which 
the  defendant  neglects  to  avail  himself  and  chooses  rather  to  re- 
main in  ignorance  when  he  might  have  obtained  full  information, 
this  will  be  evidence  of  such  wilful  blindness  as  may  amount  to 
malice. 

But  if  defendant  at  the  time  of  publication  knew  that  what  he 
said  was  false,  this  is  clear  evidence  of  malice.  A  man  who 
knowingly  makes  a  false  charge  against  his  neighbor  cannot 
claim  privilege.  It  can  never  be  his  duty  to  circulate  lies.  And 
if  the  statement  was  made  wantonly,  without  the  defendant's 
knowing  or  caring  whether  it  was  true  or  false,  such  recklessness 
is  considered  as  malicious  as  deliberate  falsehood.^  And  of  course 
if  in  writing  or  speaking  on  a  privileged  occasion,  the  defendant 
breaks  out  into  irrelevant  charges  against  the  plaintiff, 
wholly  *  unconnected  with  the  occasion  whence  the  privi-  *  270 
lege  is  derived,  such  excess  will  be  evidence  of  malice  ;  or, 
speaking  more  accurately,  such  irrelevant  charges  are  wholly  un- 
privileged, and  no  question  of  actual  malice  arises  as  to  them  ; 
unless  defendant  proves  them  true  the  verdict  must  go  against 

1  Per  Brett,  L.J.  3  Q.  B.  D.  248.  2  Per  Cotton,  L.J.,  ib.,  249. 

8  15  L.  T.  75. 

*  Per  Lord  Westbury  in  Lister  v.  Perryman,  L.  R.  4  H.  L.  521  ;  oromiling  ( Fxcli. 
Ch.)  L.  R.  3  Exch.  197. 

6  Clark  V.  ilolyneux,  3  Q.  B.  D.  247  ;  47  L,  J.  Q.  B.  230  ;  26  ^Y.  R.  104  ;  37  L.  T. 
694. 

249 


*  279  MALICE. 

him.^  One  part  of  a  letter  may  be  privileged  ;  other  parts  of  the 
same  letter  unprivileged.^  And  where  the  occasion  is  privileged, 
and  it  is  clear  that  the  defendant  believed  in  the  truth  of  the 
communication  he  made,  and  was  acting  under  a  sense  of  dut}-, 
the  plaintiff's  counsel  may  still  rely  upon  the  words  employed, 
and  the  manner  and  mode  of  publication,  as  evidence  of  malice. 
A  man  honestly  indignant  may  often  be  led  away  into  exagger- 
ated or  unwarrantable  expressions ;  or  he  may  forget  where  and 
in  whose  presence  he  is  speaking,  or  how  and  to  whom  his  writ- 
ing may  be  published.  Clearly  this  is  but  faint  evidence  of  actual 
malice  ;  the  jury  will  generally  pardon  a  slight  excess  of  righteous 
zeal.  But  the  prior  question  is  always:  "Is  there  any  evidence 
of  malice  to  go  to  the  jury  ?  "  It  is  much  better  for  the  defend- 
ant, if  the  judge  will  stop  the  case,  as  he  ought  to  do  if  there  be 
no  more  than  a  scintilla  of  evidence  for  them.  But  it  is  very 
difficult  to  say  beforehand  what  will  be  deemed  a  mere  scintilla^ 
what  more  than  a  scintilla,  in  any  given  case.  The  same  piece 
of  evidence  may  make  different  impressions  on  the  minds  of  dif- 
ferent judges. 

*  280    *  (i.)    Wliere   the    expressions    employed    are    exaggerated 

and  unwarrantable ;  hut  there  is  no  other  evidence 
of  malice. 

"  It  is  sometimes  difficult  to  determine  when  defamatory  words 
in  a  letter  may  be  considered  as  hy  themselves  affording  evidence 
of  malice."  ^  But  the  test  appears  to  be  this.  Take  the  facts  as 
they  appeared  to  the  defendant's  mind  at  the  time  of  publication  ; 
are  the  terms  used  such  as  the  defendant  might  have  honestly 
and  ho7id  fide  employed  under  the  circumstances  ?  If  so  the  judge 
should  stop  the  case.  But  if  the  expressions  employed  still  ap- 
pear uncalled  for  and  in  excess  of  the  occasion,  though  taken 
in  connection  with  what  was  in  defendant's  mind  at  the  time, 
then  it  would  seem  that  the  defendant  must  have  spoken  reck- 
lessl}^  or  angrily,  without  weighing  his  words,  and  that  is  some 
evidence  of  malice  to  go  to  the  jury.*     Thus,  if  the  plaintiff's 

I  Huntley  v.  Ward,  6  C.  B.  N.  S.  514  ;  6  Jur.  N.  S.  18  ;  Senior  v.  Medland,  4  Jur. 
(N.  S.)  1039 ;  Picton  v.  Jackman,  4  C.  &  P.  257  ;  Simmonds  v.  Dunne,  Ir.  R.  5  C.  L. 
358.  2  Warren  v.  Warren,  1  C.  M.  &  R.  251  ;  4  Tyr.  850. 

3  Per  Bramwell,  L.J.,  3  Q.  B.  D.  245.  *  Clark  v.  Molyneux,  3  Q.  B.  D.  247. 

250 


EXAGGERATIONS.  *  280 

conduct  was  equivocal,  and  might  honestly  and  bond  fide  be  sup- 
posed by  the  defendant  to  be  such  as  he  described  it,  the  mere 
fact  that  he  used  strong  words  in  so  describing  it,  is  no  evidence 
of  malice  to  go  to  the  jury.^ 

But  where  the  language  used  in  a  libel  is  "  much  too  violent 
for  the  occasion  and  circumstances  to  which  it  is  applied ; "  or 
"  utterly  beyond  and  disproportionate  to  the  facts ; "  or  where 
improper  motives  are  unnecessarily  imputed,  there  is  evidence  of 
malice  to  go  to  the  jury.^ 

And  this  is  so  especially  in  cases  where  a  rumor  preju- 
dicial to  the  plaintiff  has  reached  the  defendant,  *  which  *  281 
he  feels  it  his  duty  to  report  to  those  concerned,  but  in 
reporting  it  he  does  not  state  the  rumor  as  it  reached  him,  but 
gives  an  exaggerated  or  highly  colored  version  of  it.  "  Inimiei 
famam  non  ita,  ut  nata  est,  ferunt.^^  ^  But  in  other  cases,  the  ten- 
dency of  the  Courts  is  not  to  submit  the  language  of  privileged 
communications  to  too  strict  a  scrutiny.  "  To  hold  all  excess 
beyond  the  absolute  exigency  of  the  occasion  to  be  evidence  of 
malice  would  in  effect  greatly  limit,  if  not  altogether  defeat  that 
protection  which  the  law  throws  over  privileged  communica- 
tions." *  "  The  particular  expressions  ought  not  to  be  too  strictly 
scrutinized,  provided  the  intention  of  the  defendant  was  good."  ^ 
"  That  the  expressions  are  angry  is  not  enough ;  the  jury  must 
go  further  and  see  that  they  are  malicious."  ^ 

Illustrations. 

Defendant  changed  his  printer,  and  on  a  privileged  occasion  stated  in  writing,  as 
his  reason  for  so  doing,  that  to  continue  to  pay  the  charges  made  by  his  former  printer, 
the  plaintiff,  would  be  "to  submit  to  what  appears  to  have  been  an  attempt  to  extort 
money  by  misrepresentation."  Held,  that  these  words  imputing  improper  motives  to 
the  plaintiff  were  evidence  of  malice  to  go  to  the  jury.  Damages  £50.  Cooke  v. 
Wildes,  5  E.  &  B.  328  ;  24  L.  J.  Q.  B.  367;  1  Jur.  N.  S.  610  ;  3  C.  L.  R.  1090  ; 
O'Donoghue  v.  Hussey,  Ir.  R.  5  C.  L.  124. 

Plaintiflf  sued  defendant  on  a  bond ;  defendant  in  public,  but  on  a  pri\-ileged  occa- 

1  SpiU  V.  Maule,  Exch.  Ch.,  L.  R.  4  Exch.  232  ;  17  W.  R.  805  ;  20  L.  T.  675  ;  38 
L.  J.  Ex.  138. 

2  Fryer  v.  Kinnersley,  15  C.  B.  (N.  S.)  422  ;  33  L.  J.  (C.  P.)  96  ;  12  W.  R.  155  ; 
9  L.  T.  415  ;  Gilpin  v.  Fowler,  9  Ex.  615  ;  23  L.  J.  Ex.  152  ;  18  Jur.  293. 

3  Plaut.  Persa  II.  i.  23.  *  Per  Sir  Robert  Collier,  L.  R.  4  P.  C.  508. 

6  Per  Alderson,  B.,  in  Woodward  v.   Lander,  6  C.  &  P.  550.     And  see  Taylor  v. 
Hawkins,  16  Q.  B.  308  ;  Ruckley  v.  Kiernan,  7  Ir.  C.  L,  R.  75. 
6  Per  Tindal,  C.J.,  in  Shipley  v.  Todhunter,  7  C.  &  P.  680. 

251 


*  281  IVIALICE. 

sion,  denounced  the  plaintiff  for  attempting  to  extort  money  from  him.  Held,  that 
the  words  were  in  excess  of  the  occasion.  Robertson  v.  McDougall,  4  Bing.  670  ;  1  M. 
&  P.  692 ;  3  C.  &  P.  259.     See  Tuson  v.  Evans,  12  A.  &  E.  733,  ante,  p.  227. 

While  the  defendant  was  engaged  in  winding  up  the  affairs  of  the  plaintiff's  firm, 

of  which  defendant  was  also  a  creditor,  the  plaintiff  took  from  the  cash-box  a  parcel  of 

bills  to  the  amount  of  £1264.    Thereupon  the  defendant  wrote  to  another  cred- 

*  282     itor  of  the  firm  that  the  conduct  of  the  *  plaintiff  "has  been  most  disgraceful 

and  dishonest,  and  the  result  has  been  to  diminish  materially  the  available 
assets  of  the  estate. "  Held,  that  the  occasion  was  privileged,  and  that,  though  the 
words  were  strong,  they  were,  when  taken  in  connection  with  the  facts,  such  as  might 
have  been  used  honestly  and  bmid  fide  by  the  defendant ;  for  the  plaintiff's  conduct 
was  equivocal,  and  might  well  be  supposed  by  the  defendant  to  be  such  as  he  described 
it :  and  that  the  judge  was  right  in  directing  a  verdict  to  be  entered  for  the  defendant, 
there  being  no  other  evidence  of  actual  malice.  SpjU  v.  Maule  (Exch.  C'h.)  ;  L.  R. 
4  Ex.  232  ;  38  L.  J.  Ex.  138  ;  17  W.  R.  805  ;  20  L.  T.  675. 

The  defendant  tendered  to  Brown  at  Crickhowell  two  £1  notes  on  the  plaintiffs' 
bank  ;  which  Brown  returned  to  him  saying,  there  was  a  run  upon  that  bank,  and  he 
would  rather  have  gold.  The  defendant  the  very  next  day  went  into  Brecon  and  told 
two  or  three  people  confidentially  that  the  plaintiffs'  bank  had  stopped,  and  that  nobody 
would  take  their  bills.  Held,  that  this  exaggeration  of  the  report  was  soine  evidence 
of  malice  to  go  to  the  jury.  Bromage  v.  Prosser,  4  B.  &  Cr.  247 ;  6  D.  &  R.  296 ; 
1  C.  &  P.  475.     And  see  Senior  v.  Medland,  4  Jur.  (N.  S.)  1039. 

A  gentleman  told  the  second  master  of  a  school  that  he  had  seen  one  of  the  under- 
masters  of  the  school  on  oTie  occasion  coming  home  at  night  "under  the  influence  of 
drink,"  and  desired  him  to  acquaint  the  authorities  with  the  fact.  The  second  master 
subsequently  stated  to  the  governors  that  it  was  notoriovs  that  the  under-master  came 
home  "almost  habitually  in  a  .state  of  intoxication."  There  was  no  other  evidence  of 
malice.  Held,  that  the  Lord  Chief  Justice  was  right  in  not  withdrawing  the  case 
from  the  jury.     Hume  v.  Marshall,  Times  for  November  26th,  1877. 

(ii.)  As  to  the  method  of  communication  employed. 

If  the  mode  and  extent  of  a  privileged  publication  be  more 
injurious  to  the  plaintiff  than  necessary,  this  may  be  evidence  of 
malice  in  the  publisher.  Though  the  words  themselves  would 
be  privileged  if  addressed  only  to  the  few  individuals  concerned, 
yet  the  privilege  may  be  lost  if  the  defendant  deliberately  chooses 
to  publish  them  to  the  general  public,  or  to  any  one  who  has  no 
corresponding  interest  in  the  communication.  Letters  as  to  plain- 
tiffs private  affairs  should  not  be  published  in  the  newspapers, 
however  meritorious  the  writer's  motive  may  be.  Confidential 
communications  should  not  be  shouted  across  the  street 

*  283    for  all  tlie  world  to  hear.^     *  Defamatory  remarks,  if  writ- 

ten at  all,  should  be  sent  in  a  private  letter  properly  sealed 
and  fastened  up  ;  not  written  on  a  postcard,  or  sent  by  telegraph ; 

1  Wilson  V.  Collins,  5  C.  &  P.  373. 

252 


UNDUE  PUBLICITY.  *  283 

for  two  strangers  at  least  read  every  telegram  ;  many  more  most 
postcards.^  There  is  no  privilege  attaching  even  to  correct  and 
accurate  reports  of  public  meetings.^  But  where  printing  a 
report  is  the  usual  and  necessary  method  of  communication  be- 
tween the  directors  and  shareholders,  the  privilege  will  not  be 
lost  merely  because  the  compositors  and  journeymen  printers 
employed  were  not  shareholders.^  So  with  an  advertisement 
inserted  in  a  newspaper  defamatory  of  the  plaintiff;  if  such  ad- 
vertisement be  necessary  to  protect  the  defendant's  interests, 
or  if  advertising  was  the  only  way  of  effecting  the  defendant's 
object,  and  such  object  is  a  legal  one,  then  the  circumstances 
excuse  the  extensive  publication.  But  if  it  was  not  necessary 
to  advertise  at  all,  or  if  the  defendant's  object  could  have  been 
equally  well  effected  by  an  advertisement  wliich  did  not  contain 
the  words  defamatory  of  the  plaintiff,  then  the  extent  given  to 
the  announcement  is  evidence  of  malice  to  go  to  the  jury.*  The 
law  is  the  same  as  to  posting  libellous  placards  ;  ^  or  having  a 
libellous  notice  cried  by  the  town  crier.^ 

*  So  with  a  privileged  oral  communication,  it  is  impor-  *  284 
tant  to  observe  who  is  present  at  the  time  it  is  made.  A 
desire  should  be  shown  to  avoid  all  unnecessary  publicity.  It  is 
true  that  the  accidental  presence  of  an  uninterested  bystander 
will  not  alone  take  the  case  out  of  the  privilege,  and  there  are 
some  communications  which  it  is  wise  to  make  in  the  presence 
of  witnesses ;  but  if  it  can  be  proved  that  defendant  purposely 
chose  a  time  for  making  the  communication  when  others  were 
by,  whom  he  knew  would  act  upon  it,  this  may  be  some  evidence 
of  malice.  The  question  for  the  jury  in  such  cases  is :  Was  the 
charge  against  the  plaintiff  made  bond  fide,  and,  if  so,  was  it 
made  before  more  persons  or  in  stronger  language  than  neces- 
sary ?  '^ 

1  WiUiamson  v.  Freer,  L.  R.  9  C.  P.  393  ;  43  L.  J.  C.  P.  161  ;  WTiitfiekl  v.  S.  E. 
Ry.  Co.,  E.  B.  &  E.  115  ;  Robinson  v.  Jones,  4  L,  R.  Ir.  391. 

2  Davison  v.  Duncan,  7  E.  &  B.  231  ;  26  L.  J.  Q.  B.  104  ;  Popham  v.  Pickbum, 
7  H.  &  X.  897  ;  31  L.  J.  Ex.  133  ;  Purcell  v.  Sowler,  2  C.  P.  D.  215  ;  46  L.  J.  C. 
P.  308  ;  25  W.  R.  362  ;  36  L.  T.  416. 

3  Lawless  v.  Anglo-Egyptian  Cotton  and  Oil  Co.,  L.  R.  4  Q.  B.  262. 

*  Brown  v.  Croome,  2  Stark.  297  ;  and  Lay  v.  Lawson,  4  A.  &  E.  795  ;  overruling, 
or  at  least  explaining,  Delany  v.  Jones,  4  Esp.  191. 

5  Cheese  v.  Scales,  10  M.  &  W.  488. 

6  Woodard  v.  Dowsing,  2  Man.  &  Ry.  74. 

7  Padmore  v.  Lawrence,  11  A.  &  E.  380  ;  Fowler  and  wife  v.  Homer,  3  Camp.  294. 

253 


*  284  MALICE. 


Illustrations. 


The  defendant  in  a  petition  to  the  House  of  Commons  charged  the  plaintiff  with 
extortion  and  oppression  in  his  office  of  vicar-general  to  the  Bishop  of  Lincoln.  Copies 
of  the  petition  were  printed  and  delivered  to  the  members  of  the  committee  appointed 
by  the  House  to  hear  and  examine  grievances,  in  accordance  with  the  usual  order  of 
proceeding  in  the  House.  No  copy  was  delivered  to  any  one  not  a  member  of  Parlia- 
ment. Edd,  that  the  petition  was  privileged,  although  the  matter  contained  in  it  was 
false  and  scandalous  ;  and  so  were  all  the  printed  copies  :  for,  though  the  printing  was 
a  publication  to  the  printers  and  compositors,  still  it  was  the  usual  course  of  proceeding 
in  Parliament ;  and  it  was  not  so  great  a  publication  as  to  have  so  many  copies  tran- 
scribed by  several  clerks.  Lake  v.  King,  1  Lev.  240  ;  1  Saund.  131  ;  Sid.  414  ;  1  Mod. 
58.  See  Lawless  v.  Anglo- Egyptian  Cotton  and  Oil  Co.,  Limited,  L.  R.  4  Q.  B.  262  ; 
10  B.  &  S.  226  ;  38  L.  J.  Q.  B.  129  ;  17  W.  R.  498,  ante,  p.  242. 

If  libellous  matter,  which  would  have  been  privileged  if  sent  in  a  sealed  letter,  be 
transmitted  unnecessarily  by  telegraph,  the  privilege  is  thereby  lost.  Williamson  v. 
Freer,  L.  R.  9  C.  P.  393  ;  43  L.  J.  C.  P.  161  ;  22  W.  R.  878  ;  30  L.  T.  332. 

An  Irish  Court  will  take  judicial  notice  of  the  nature  of  a  postcard,  and  will  pre- 
sume that  others  besides  the  person  to  whom  it  is  adressed  will  read  what  is  written 

thereon.     Robinson  v.  Jones,  4  L.  R.  Ir.  391. 
*  285  *  Defendant  having  lost  certain  bills  of  exchange,  published  a  handbill, 

offering  a  reward  for  their  recovery,  and  adding  that  he  believed  they  had 
been  embezzled  by  his  clerk.  His  clerk  at  that  time  still  attended  regularly  at  his 
office.  Held,  that  the  concluding  words  of  the  handbill  were  quite  unnecessary  to  de- 
fendant's object,  and  were  a  gratuitous  libel  on  the  plaintiff.  Damages  £200.  Finden 
V.  Westlake,  Moo.  &  Malk.  461. 

The  justices  were  about  to  swear  in  the  plaintiff  as  a  paid  constable,  when  defendant, 
a  parishioner,  came  forward  and  stated  that  the  plaintiff  was  an  improper  person  to  be 
a  constable.  Held,  that  the  fact  that  several  other  persons  besides  the  justices  were 
present,  as  usual,  did  not  destroy  the  privilege  attaching  to  such  bond  fide  remark. 
Kershaw  v.  Bailey,  1  Ex.  743 ;  17  L.  J.  Ex.  129. 

Where  a  master  about  to  dismiss  his  servant  for  dishonesty  calls  in  a  friend  to  hear 
what  passes,  the  presence  of  such  third  party  will  not  destroy  the  privilege.  Taylor  v. 
Hawkins,  16  Q.  B.  308  ;  20  L.  J.  Q.  B.  313  ;  15  Jur.  746. 

Where  a  master  discharo-ed  his  footman  and  cook,  and  they  asked  him  his  reason 
for  doing  so,  and  he  told  the  footman,  in  the  absence  of  the  cook,  that  "he  and  the 
cook  had  been  robbing  him,"  and  told  the  cook  in  the  absence  of  the  footman  that  he 
had  discharged  her  "  because  she  and  the  footman  had  been  robbing  him."  Held,  that 
these  were  privileged  communications  as  respected  the  absent  parties,  as  weH  as  those 
to  whom  they  were  respectively  made.  Manby  v.  Witt,  18  C.  B.  544  ;  25  L.  J.  C.  P. 
294  ;  2  Jur.  N.  S.  1004  ;  Eastmead  v.  Witt,  ib. 

That  defendant  caused  the  libel  to  be  industriously  circulated  is  evidence  of  malice. 
Gathercole  v.  Miall,  15  M.  &  W.  319  ;  15  L.  J.  Ex.  179  ;  10  Jur.  337. 

A  shareholder  in  a  railway  company  himself  invited  reporters  for  the  press  to  attend 
a  meeting  of  the  shareholders  which  he  had  summoned,  and  at  which  he  made  an  at- 
tack against  one  of  the  directors.  Held,  that  the  privilege  was  lost  thereby.  Parsons 
V.  Surgey,  4  F.  &  F.  247.     And  see  Davis  v.  Cutbush  and  others,  1  F.  &  F.  487. 

Defendant  accused  the  plaintiff,  in  the  presence  of  a  third  person,  of  stealing  his 
wife's  brooch  ;  plaintiff  wished  to  be  searched  ;  defendant  repeated  the   accusation  to 
two  women,  who  searched  the  plaintiff  and  found  nothing.     Subsequently  it  was  dis- 
254 


COJEMUNICATIONS  VOLUNTEERED.  *  285 

covered  that  defendant's  wife  had  left  the  brooch  at  a  friend's  house.  Ecld,  that  the 
mere  publication  to  the  two  women  did  not  destroy  the  privilege  attaching  to  charges,  if 
made  bond  fide;  but  that  all  the  circumstances  should  have  been  left  to  the  jury.  Padmore 
V.  Lawrence,  11  A.  &  E.  380;  4  Jur.  458;  3  P.  &  D.  209.  And  see  Amann  v.  Damm, 
8  C.  B.  N.  S.  597;  29  L.  J.  C.  P.  313;  7  Jur.  N.  S.  47;  8  W.  R.  470. 

*  The  defendant  was  a  customer  at  the  plaintiff's  shop,  and  had  occasion  to  *  286 
complain  of  what  he  considered  fraud  and  dishonesty  in  the  plaintiff's  conduct 
of  his  business  ;  but  instead  of  remonstrating  quietly  with  him,  the  defendant  stood 
outside  the  shop-door  and  spoke  so  loud  as  to  be  heard  by  every  one  passing  down  the 
street.  The  language  he  employed  also  was  stronger  than  the  occasion  warranted. 
Hdd  that  there  was  evidence  of  malice  to  go  to  the  jury.  Damages  40s.  Oddy  v.  Lord 
Geo.  Paulet,  4  F.  &  F.  1009.    And  see  Wilson  v.  Collins,  5  C.  &  P.  373. 

The  mere  fact  that  tlie  defendant  volunteered  the  information 
is,  when  it  stands  alone,  no  evidence  of  malice ;  but  if  there  be 
any  other  circumstances  raising  a  presumption  of  malice,  then  it 
may  weigh  with  the  jury.  In  fact,  if  the  judge  and  jury  agree 
in  thinking  the  defendant's  interference  was  officious  and  uncalled 
for,  the  privilege  is  lost,  and  no  inquiry  need  be  made  as  to  the 
existence  of  express  malice. 

In  Brooks  v.  Blanshard,i  Lord  Lynclhurst,  C.B.,  says,  "  It  is  not 
merely  because  a  communication  is  confidential  that  it  is  privi- 
leged, if  it  is  volunteered  by  the  party  making  it."  But  in  every 
case,  whether  volunteered  or  not,  the  question  is.  Was  the  com- 
munication fairly  warranted  by  the  exigency  of  the  occasion  ?  If 
so,  the  jury  should  find  for  the  defendant,  unless  there  be  some 
other  evidence  of  mahce.  No  doubt  it  will  often  require  a 
greater  exigency  to  warrant  the  defendant  in  volunteering  the  in- 
formation than  in  merely  answering  a  confidential  inquiry.  But 
still  in  all  cases  where  the  duty  to  speak  is  clear,  it  is  defendant's 
duty  to  go  and  tell  the  person  concerned,  if  he  does  not  come  to 
the  defendant.  For  it  may  well  be  that  he  has  no  suspicions,  and 
will  never  come  and  inquire.  But  in  cases  where  there  can  be 
any  doubt  as  to  defendant's  duty  to  speak,  there  the  fact  that  the 
defendant  took  the  initiative  may  tell  against  him.  Thus  it  is 
usual  for  a  former  master  to  give  the  character  of  a 
*  servant  on  application^  and  not  before.  Hence  if  a  mas-  *  287 
ter  hears  a  discharged  servant  is  applying  for  a  place  at 
M.'s  house,  and  writes  at  once  to  M.  to  give  the  servant  a  bad 
character,  the  fact  that  the  communication  was  uncalled  for  will 
be  apt  to  tell  against  the  master.  M.  would  almost  certainly 
have  applied  to  the  defendant  for  the  information  sooner  or  later ; 

1  1  Cr.  &  M.  779,  3  Tyrw.  844. 

235 


*  287  MALICE. 

and  the  eagerness  displayed  in  thus  imparting  it  unasked  will  be 
commented  on  as  a  proof  of  malice,  and  if  there  be  any  other 
evidence  of  malice,  however  slight,  may  materially  influence  the 
verdict.  But  if  there  be  no  other  evidence  of  malice,  the  commu- 
nication is  still  privileged.!  The  presumption  in  favor  of  the  de- 
fendant arising  from  the  privileged  occasion  remains,  till  it  is 
rebutted  by  evidence  of  express  malice  ;  and  evidence  merely 
equivocal,  that  is,  equally  consistent  with  malice  or  bona  fides, 
will  do  nothing  towards  rebutting  the  presumption.  Also,  when 
a  communication  is  volunteered  great  care  should  be  taken  as  to 
the  person  to  whom  it  is  addressed.  No  privilege  attaches  to  a 
communication  unnecessarily  made  to  a  person  wholly  uncon- 
cerned therewith.  Thus  in  seeking  redress  for  a  grievance  be 
sure  to  invoke  the  aid  of  some  one  who  has  some  kind  of  jurisdic- 
tion in  the  matter.  For  though  a  bond  fide  mistake  as  to  the 
respective  functions  of  various  state  officials  may  easily  be  made 
by  an  uneducated  or  even  an  educated  man,  and  will  not  there- 
fore of  itself  be  evidence  of  malice,  still  a  statement  volunteered 
to  some  one  who  has  no  possible  duty  or  power  to  remedy  the 
abuse  complained  of,  will  be  clearly  "  in  excess  of  the  occa- 
sion." ^ 

*  288  *  Illustrations. 

The  defendant,  the  tenant  of  a  farm,  required  some  repairs  to  be  done  at  his  house  ; 
the  landlord's  agent  sent  up  two  workmen,  the  plaintiff  and  Taylor.  They  made  a 
bad  job  of  it ;  the  plaintiff  undoubtedly  got  drunk  while  on  the  premises  ;  and  the  de- 
fendant was  convinced  from  what  he  heard  that  the  j)laintifr  had  broken  open  his  cellar- 
door  and  drunk  his  cider.  Two  days  afterwards  the  defendant  met  the  plaintiff  and 
Taylor  together,  and  charged  the  plaintifiF  with  breaking  open  the  cellar-door,  getting 
drunk,  and  spoiling  the  job.  He  repeated  this  charge  later  in  the  same  day  to  Taylor 
alone  in  the  absence  of  the  plaintiff,  and  also  to  the  landlord's  agent.  Meld,  that  the 
communication  to  the  landlord's  agent  was  clearly  privileged  as  he  was  the  plaintiff's 
employer  ;  that  the  statement  made  to  the  plaintiff  in  Taylor's  presence  was  also  privi- 
leged,'if  made  honestly  and  bond  fide;  and  that  the  circumstance  of  its  being  made  in 
the  presence  of  a  third  person  did  not  of  itself  make  it  unauthorized,  and  that  it  was  a 
question  to  be  left  to  the  jury  to  determine  from  the  circumstances,  including  the  style 
and  character  of  the  language  used,  whether  the  defendant  acted  bo7id  fide,  or  was  in- 
fluenced by  malicious  motives.  But,  that  the  statement  to  Taylor,  in  the  absence  of 
the  plaintifiF,  was  unauthorized  and  officious,  and  therefore  not  protected,  although 

1  Pattison  v.  Jones,  8  B.  &  C.  578  ;  Fowles  v.  Bowen,  3  Tiffany  (30  N.  Y.  K.),  20  ; 
and  see  other  cases  cited,  ante,  pp.  202,  7,  9. 

2  See  Scarll  v.  Dixon,  4  F.  &  F.  250  ;  Harrison  v.  Bush,  5  E.  &  B.  344  ;  25  L.  J. 
Q.  B.  25  ;  Fairman  v.  Ives,  5  B.  &;  Aid,  642,  ante,  p.  224. 

256 


COMMUNICATIONS   VOLUNTEEEED.  *  288 

made  in  the  belief  of  its  truth,  if  it  were  in  point  of  fact  false.     Toogood  v.  SpjTing,  1 
Cr.  M.  &R.  181;  4  Tyr.  582. 

A  lieutenant  in  the  navy  was  appointed  by  the  Government  agent  or  superintendent 
on  board  a  transport  ship,  the  Jupiter.  He  wrote  a  letter  to  the  secretary  at  Lloyd's, 
imputing  misconduct  and  incapacity  to  the  plaintiff,  the  master  of  the  Jupiter.  Tliis 
was  held  altogether  unprivileged ;  the  information  should  have  been  given  to  the  Gov- 
ernment alone,  by  whom  the  defendant  was  employed.  Harwood  v.  Green,  3  C.  & 
P.  141. 

17  257 


*289  *  CHAPTER  X. 

DAIHAGES. 

Damages  are  of  two  kinds  :  — 

(i.)  General, 
(ii.)  Special. 

General  Damages  are  such  as  the  law  will  presume  to  be  the 
natural  or  probable  consequences  of  the  defendant's  conduct. 

Special  Damages  are  such  as  the  law  will  not  presume  to  have 
been  suffered,  from  the  nature  of  the  words  themselves ;  they 
must  therefore  be  specially  claimed  on  the  pleadings,  and  evi- 
dence of  them  must  be  given  at  the  trial.  Such  damages  depend 
upon  the  special  circumstances  of  the  case,  upon  the  defendant's 
position,  upon  the  conduct  of  third  persons,  &c.  &c.  Very  prob- 
ably they  would  not  have  been  incurred,  had  the  same  words 
been  spoken  on  another  occasion,  or  to  different  hearers. 

But  in  some  cases  special  damage  is  also  a  necessary  element 
in  the  cause  of  action.  When  on  the  face  of  them  the  words 
used  by  the  plaintiff  clearly  must  have  injured  the  plaintiff's 
reputation,  they  are  said  to  be  actionable  per  se ;  and  the  plain- 
tiff may  recover  a  verdict  for  a  substantial  amount,  without  giving 
any  evidence  of  actual  pecuniary  loss.  But  where  the  words  are 
not  on  the  face  of  them  such  as  the  courts  will  presume 
*  290  to  be  necessarily  prejudicial  to  the  *  plaintiff's  reputation, 
there  evidence  must  be  given  to  show  that  in  fact  some 
appreciable  injury  has  in  this  case  followed  from  their  use.  In 
short,  where  the  words  are  not  actionable  per  se,  special  damage 
must  be  alleged  and  proved,  or  the  plaintiff  will  be  nonsuited. 
The  injury  to  the  plaintiff's  reputation  is  the  gist  of  the  action  : 
he  has  to  show  that  his  character  has  suffered  through  the  defend- 
ant's false  assertions :  and  where  there  is  no  presumption  in 
plaintiff's  favor,  he  can  only  show  this  by  giving  evidence  of 
some  special  damage. 
258 


GENERAL  DAJIAGES.  *  290 

It  will  be  convenient  to  divide  this  chapter  into  the  following 
heads  :  — 

I.  —  General  Damages. 

II.  —  Evidence  for  the  plaintiff  in  aggravation  of  damages :  — 

(i.)  Malice. 

(ii.)  Extent  of  publication, 
(iii.)  Plaintiff's  good  character. 

III.  —  Evidence  for  the  defendant  in  mitigation  of  damages :  — 

(i.)  Apology  and  amends. 

(ii.)  Absence  of  malice, 
(iii.)  Plaintiff's  bad  character, 
(iv.)  Provocation  given  by  the  plaintiff, 
(v.)  Absence  of  special  damage. 

IV.  —  Special  Damage,  where  the  words  are  not  actionable 

per  se. 
V.  —  Special  Damage,  where  the  words  are  actionable  j^^r  se. 
VI.  —  Remoteness  of  damages. 

*  I.  —  General  Damages.  *  291 

General  damages  are  such  as  the  law  will  presume  to  be  the 
natural  or  probable  consequence  of  the  defendant's  conduct. 
They  arise  by  inference  of  law ;  and  need  not  therefore  be 
proved  by  evidence.  Such  damages  may  be  recovered  wherever 
the  immediate  tendency  of  the  words  is  to  impair  the  plaintiff's 
reputation,  although  no  actual  pecuniary  loss  has  in  fact  resulted. 

Such  general  damages  will  only  be  presumed  where  the  words 
are  actionable  per  se.  If  any  special  damage  has  also  been 
suffered,  it  should  be  set  out  on  the  pleadings  ;  but,  should 
plaintiff  fail  in  proving  it  at  the  trial,  he  may  still  of  course  re- 
sort to  and  recover  general  damages.^  If  one  single  issue  out  of 
many  be  found  in  favor  of  the  plaintiff  the  jury  must  proceed  to 
assess  damages.^ 

The  amount  at  which  general  damages  are  to  be  assessed  lies 
almost  entirely  in  the  discretion  of  the  jury ;    the   courts  will 

1  Cook  V.  Field,  3  Esp.  133  ;  Smith  v.  Thomas,  2  Bing.  N.  C.  372  ;  2  Scott,  546  ; 
4  Dowl.  333  ;  1  Hodges,  353  ;  Brown  v.  Smith,  13  C.  B.  596  ;  22  L.  J.  C.  P.  151  ; 
17  Jur.  807  ;  1  C.  L.  R.  4  ;  Evans  v.  Harries,  1  H.  &  X.  251  ;  26  L.  J.  Ex.  31. 

2  Clement  v.  Lewis,  3  Brod.  &  B.  297  ;  7  Moore,  200  ;  3  B.  cS:  Aid.  702. 

259 


*  291  DAISIAGES. 

never  interfere  with  the  verdict  merely  because  the  amount  is 
excessive,  (a)     A  new  trial  will  only  be  granted  where  the  ver- 
dict is  so  large  as  to  satisfy  the  Court  that  it  was  perversely  in 
excess  or  the  result  of  some  gross  error  on  a  matter  of 

*  292    principle  ;  it  must  be  *  shown  that  the  jury  either  miscon- 

ceived the  case  or  acted  under  the  influence  of  undue 
motives.  In  fact,  although  in  theory,  it  is  the  duty  of  the  jur}^ 
to  give  such  sum  only  as  will  fairly  compensate  the  plaintiff  for 
the  injury  he  has  sustained,  yet,  in  practice,  juries  frequently, 
especially  where  the  defendant  has  acted  with  clear  and  express 
malice,  give  vindictive  damages,  which  are  clearlj'-  meant  not  so 
much  as  a  compensation  to  the  plaintiff  for  his  loss,  as  a  punish- 
ment to  the  defendant  for  his  misconduct.  And  it  is,  I  think,  a 
benefit  to  the  community  that  a  penalty  should  thus  be  imposed 
on  an  exhibition  of  spite  and  ill-will. i  (6)  So,  again,  where  the 
damages  awarded  appear  strangely  small,  a  new  trial  will  not  be 
granted,  unless  it  is  clearly  shown  that  the  jury  wholly  omitted 
to  take  into  their  consideration  some  element  of  damage  ;  ^  or 

1  See  Erablen  v.  Myers,  6  H.  &  N.  54  ;  30  L.  J.  Exch.  71  ;  Bell  v.  Midland  Ey. 
Co.,  10  C.  B.  N.  S.  287  ;  30  L.  J.  C.  P.  273  ;  9  W.  R.  612  ;  4  L.  T.  493. 

2  Phillips  V.  London  &  S.  W.  Ry.  Co.,  4  Q.  B.  D.  406  ;  48  L.  J.  Q.  B.  693  ;  27 
W.  R.  797  ;  40  L.  T.  813  ;  (C.  A.)  5  Q.  B.  D.  78  ;  49  L.  J.  Q.  B.  233  ;  28  W.  R.  10  ; 
41  L.  T.  121. 

(a)  See  Douglass  v.  Tousey,  2  Wend.  Snyder  v.  Fulton,  34  Md.  129;  Evening 

352  ;  Root  v.  King,  7  Cowen,  613  ;  s.  c.  4  News   Assoc,   v.   Tryon,    42   Mich.    549  ; 

Wend.  113  ;  Gabe  v.  McGinnis,  68  Ind.  Scripps    v.   Reillj^,  38  Mich.  10  ;  Scripps 

538  ;  Indianapolis  Sun  Co.  v.  Horrell,  53  v.    Foster,    41    Mich.    742  ;     Buckley   v. 

Ind.  527;  Dean  v.  Miller,  66  Ind.  440;  Knapp,  48    Mo.   152;    Clements    v.  Ma- 

Clarkson    v.    McCarty,    5    Blackf.    574  ;  lory,    55    Mo.    353 ;   Bump  v.  Betts,  23 

Saunders  V.  Johnson,  6  Blackf.  50  ;  Gerard  Wend.  85 ;  Hubbard  v.  Rutledge,  52  Miss. 

V.  Risk,  11  Ind.  156  ;  Mclntire  v.  Young,  581 ;  Hamilton  v.  Eno,  81  N.  Y.  116,127; 

6  Blackf.  496  ;  Alexander  v.  Thomas,  25  Fowles  v.  Chichester,  26  Ohio  St.  9 ;  Ban- 

Ind.  268  ;    Iseley  v.   Lovejoy,   8  Blackf.  v.   Moore,   87  Penn.  St.   385 ;    Rogers  v. 

442  ;   Dunn  v.  Hall,  1  Ind.  344  ;   Storey  Henr}%  32  Wis.  327.     Many  of  these  cases 

r.  Wallace,  60  111.  51  ;  Freeman  v.  Tinsley,  show  further  that  punitive  damages  may 

50  111.  497;    Clear  v.  Reasor,   29   Iowa,  be  given  if  thought  proper  by  the  jury  with- 

327  ;  Bowe  v.  Rogers,  50  Wis.  598  ;  Rogers  out  evidence  of  malice  beyond  the  words ; 

V.  Henry,  32  Wis.  327.  and  in   Barr  v.  Moore,  supra,  it  is  held 

(h)  That  punitive  damages  may  be  given  that  the  fact  that  an  indictment  may  be 

is  well  settled.     Harmon  v.  Hannon,  61  sustained  for  the  same  defamation  is  not 

Maine,  233  ;  Stacy  v.  Portland  Pub.  Co.,  material.     That  is  no  doubt  the  general 

68  Maine,  279  ;  Nolan  v.  Traber,  49  Md.  law.     Scripps  v.  Reilly,  38  Mich.  10.    But 

460  ;    Meyer  v.   Bohlfing,   44  Ind.    238  ;  the  rule  is  stated  rather  more  narrowly  in 

Taber  v.  Hutson,  5  Ind.   322  ;    Gerard  v.  Ransone  v.  Christian,  56   Ga.  351 ;    S.  C. 

Risk,  11  Ind.  156  ;  Schmisseur  i;.  Kreilich,  49  Ga.  491.     ^qq  post,  p.  490,  note. 
92  111.  347  ;  Flagg  v.  Roberts,  67  111.  485  ; 

260 


GEJSTEEAX,  DAMAGES.  *  292 

unless  the  smallness  of  the  amount  shows  that  the  jury  made  a 
compromise,  and  did  not  really  try  the  issues  submitted  to  them.^ 

The  jury  must  assess  the  damages  once  for  all :  no  fresh  action 
can  be  brought  for  any  subsequent  damage.^  They  should  there- 
fore take  into  their  consideration  every  consequence  which 
the  words  used  would  '•  have  a  natural  tendency  "  *  to  *  293 
produce  ;  but  not  merely  problematical  or  eventual  dam- 
ages that  may  possibly  happen,  or  possibly  may  not/^  The  jury 
also  may  fairly  take  into  their  consideration  the  rank  and  posi- 
tion in  society  of  the  plaintiff,  the  mode  of  publication,  the  extent 
of  the  circulation  of  the  words  complained  of,  the  fact  that  the 
attack  was  entirely  unprovoked,  that  the  defendant  could  have 
easily  ascertained  that  the  charge  he  made  was  false,  &c. 

Even  if  no  evidence  be  offered  by  the  plaintiff  as  to  damages, 
the  jury  are  in  no  way  bound  to  give  nominal  damages  only  ;  they 
may  read  the  libel  and  give  such  substantial  damages  as  will  com- 
pensate the  plaintiff  for  such  defamation.^  And  whej:e  the  Stat- 
ute of  Limitations  is  relied  on  as  a  defence ;  but  proof  is  given 
that  one  single  copy  has  been  sold  by  the  defendant  to  an  agent 
of  the  plaintiff  within  the  last  few  months ;  the  jury  are  not  to 
limit  the  damages  to  the  injury  which  the  plaintiff  may  be  sup- 
posed to  have  incurred  from  that  single  publication,  but  may  give 
general  damages  for  the  original  dissemination  of  the  libel.^ 

A  general  loss  of  business  by  a  trader  in  consequence  of  defa- 
mation is  general  damage  which  the  law  presumes  ;  but  no  par- 
ticular instances  can  be  gone  into,  unless  the  customers'  names 
be  given  in  the  statement  of  claim,  or  in  the  particulars ;  for  this 
is  special  damage,  and  must  therefore  be  laid  specially.^ 

1  Falvey  v.  Stanford.  L.  R.  10  Q.  B.  54  ;  44  L.  J.  Q.  B.  7  ;  23  W.  R.  162  ;  31  L. 
T.  677  ;  Kelly  v.  Sherlock,  L.  R.  1  Q.  B.  686,  697  ;  35  L.  J.  Q.  B.  209  ;  12  Jur.  N. 
S.  937  ;  Forsdike  and  wife  v.  Stone,  L.  R.  3  C.  P.  607  ;  37  L.  J.  C.  P.  301  ;  16  W.  R. 
976;  18  L.  T.  722. 

2  Fitter  v.  Veal,  12  Mod.  542  ;  B.  N.  P.  7  ;  Gregory  and  another  v.  Williams,  1  C. 
&  K.  568. 

8  Per  De  Grey,  C.J.,  in  Onslow  v.  Home,  3  TVils.  188  ;  2  W.  Bl.  753  ;  Bayley,  B., 
in  Lumby  v.  Allday,  1  C.  &  J.  305  ;  1  Tyr.  217,  and  see  Doyley  v.  Roberts,  3  Bing. 
N.  C.  835  ;  5  Scott,  40  ;  3  Hodges,  154. 

4  Tripp  V.  Thomas,  3  B.  &  C.  427. 

5  Duke  of  Brunswick  v.  Harmer,  14  Q.  B.  185  ;  19  L.  J.  Q.  B.  20  ;  14  Jur.  110; 
3  C.  &  K.  10. 

6  Ashley  v.  Harrison,  Peake,  256  ;  1  Esp.  48  ;  Delegal  v.  Highley,  5  Scott,  154  ;  8  C. 
&  P.  444  ;  3  Bing.  N.  C.  950. 

261 


*  294  DAMAGES. 

*  294        *  In  cases  of  libel,  every  one  concerned  either  in  writing 

or  publishing  the  libel,  or  in  causing  or  procuring  the  libel 
to  be  written  or  published,  is  equally  liable  for  all  the  damage 
consequent  on  that  publication.  They  are  all  deemed  publishers. 
Thus,  if  the  libel  appear  in  a  newspaper,  the  proprietor,  the  editor, 
the  printer,  and  the  author,  are  all  liable  to  be  sued,  either  sepa- 
rately or  together.  And  that  one  has  been  already  sued  is  no 
defence  to  an  action  brought  against  any  of  the  others  in  respect 
of  the  same  libel.^  Nor  should  the  fact  that  other  actions  are 
pending  for  the  same  libel  be  taken  into  consideration  by  the 
jury  in  assessing  the  damages  arising  from  the  publication  by  the 
present  defendant.^  And  there  is  no  contribution  between  tort- 
feasors. So  that  the  proprietor  of  a  paper  sued  jointly  with  his 
careless  editor  or  with  the  actual  composer  of  the  libel,  cannot 
compel  either  of  his  co-defendants  to  recoup  him  the  damages, 
which  he  has  been  compelled  to  pay  the  plaintiff.^ 

But  if  there  be  two  distinct  and  separate  publications  of  the 
same  libel,  a  defendant  who  was  concerned  in  the  first  publica- 
tion, but  wholly  unconnected  with  the  second,  would  not  be  liable 
for  any  damages  which  he  could  prove  to  have  been  the  conse- 
quence of  the  second  publication  and  in  no  way  due  to  the  first. 

In  cases  of  slander,  on  the  other  hand,  the  defendant  is  only 
liable  for  such  damages  as  result  directly  from  his  own  utterance. 
If  another  chooses  to  repeat  what  defendant  has  said,  that  is  his 
own  conscious  and  voluntary  act,  for  the  results  of  which  he  alone 
is  responsible. 

In  former  days,  it  "was  the  rule  that  if  there  were  several  counts 

*  295    on  different  libels  or  slanders,  and   entire  damages  were  *  given, 

judgment  would  be  arrested,  and  a  venire  de  novo  awarded,  if  a 
single  count  proved  for  any  reason  defective.  In  criminal  cases  the  rule 
has  always  been  the  reverse,  and  the  judgment  stands  if  a  single  count 
prove  good.  Tlie  judges  often  expressed  a  wish  that  the  rule  in  civil  cases 
was  the  same  as  in  criminal ;  but  the  authorities  to  the  contrary  were  too 
clear  and  decisive.* 

1  Frescoe  v.  May,  2  F.  &  F.  123. 

2  Harrison  v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T.  (Old  S.)  298. 

3  Colburn  v.  Patmore,  1  C.  M.  &  R.  73  ;  4  Tyr.  677. 

*  Savile  v.  Jardine,  2  Hen.  Bl.  531  ;  Holt  v.  Scholefield,  6  T.  R.  694  ;  Angle  v. 
Alexander,  7  Bing.  119  ;  1  Tyr.  9  ;  1  C.  &  J.  143  ;  Day  v.  Robinson,  1  A.  &  E.  554  ; 
4  N.  &  M.  884 ;  Pemberton  v.  Colls,  10  Q.  B.  461 ;  16  L.  J.  Q.  B.  403 ;  11  Jur.  1011. 

262 


EVIDENCE  IN  AGGRAVATION.  *  295 

It  was  therefore  the  duty  of  the  plaintiff's  counsel  formerly  to  endeavor 
to  have  the  damages  assessed  on  each  count  separately,  if  he  had  any  doubt  as 
to  sufficiency  of  any  particular  count.  But  now  declarations  and  counts 
are  abolished,  and  I  apprehend  this  rule  does  not  apply  to  the  modern 
statement  of  claim ;  though  as  yet  there  has  been  no  decision  on  the 
point. 

The  jury  in  assessing  damages  ought  not  to  take  into  consider- 
ation the  question  of  costs.  They  frequently  ask  a  judge  what 
amount  will  carry  costs ;  but  it  seems  it  is  the  duty  of  a  judge  not 
to  inform  them.^  Though  Erie,  C.J.,  gave  the  jury  such  infor- 
mation in  Atthill  v.  Soman,  on  the  Norfolk  Circuit,^  and  in 
Wakelin  v.  Morris.^  And  indeed  now  as  the  costs  are  practically 
in  the  discretion  of  the  judge,  it  would  be  difficult  to  answer  the 
question.^ 

*  II.  —  Evidence  foe  the  Plaintiff  in  Aggravation   *  296 

OF   DAilAGES. 

(i.)  Malice. 

The  fact  that  the  defamation  was  deliberate  and  malicious, 
will  of  course  enhance  the  damages.  All  the  circumstances  at- 
tending the  publication  may  therefore  be  given  in  evidence ;  and 
any  previous  transactions  between  the  plaintiff  and  the  defend- 
ant which  have  any  direct  bearing  on  the  subject-matter  of  the 
action,  or  are  a  necessary  part  of  the  history  of  the  case.  But  it 
does  not  follow  that  every  piece  of  evidence  which  has  been  de- 
clared admissible  to  prove  malice  when  malice  is  in  issue,°  is  also 
admissible  in  aggravation  of  damages  when  there  is  no  question 
as  to  the  defendant's  motive  or  intent.  Thus  evidence  may  be 
given  of  antecedent  or  subsequent  libels  or  slanders  to  show  that 
a  communication  prima  facie  privileged  was  made  maliciously  ;^ 
and  also  when  evidence  is  necessary  to  explain  the  meaning  of 
language  which  without  it  appears  ambiguous.'^  But  such  evi- 
dence may  not  be  given  where  the  existence  of  malice  is  undis- 

1  Kelly  V.  Sherlock,  L.  K.  1  Q.  B.  686,  691  ;  35  L.  J.  Q.  B.  209  ;  12  Jur.  N.  S.  937; 
Wilson  V.  Reed  and  others,  2  F.  &  F.  152.  2  15  l.  T.  36. 

8  2  F.  &  F.  26.     And  see  Grater  v.  Collard,  6  Dowl.  503. 
*  See  the  next  chapter,  pp.  334,  6.  5  See  Chapter  IX. 

6  C.  IX.,  p.  272.  ^  C.  III.,  p.  113. 

263 


*  296  DA^IAGES. 

puted,  and  the  words  of  the  libel  are  clear.^  And  when  such  evi- 
dence is  admissible,  the  jury  should  always  be  cautioned  to  give  no 
damages  in  respect  of  it.^  But  if  a  subsequent  libel  has  immediate 
reference  to  the  one  sued  on,  it  may  be  admitted  as  a  necessary 
part  of  the  res  gestce,  if  the  judge  considers  it  as  bearing  directly 
on  the  matter  in  hand.^ 

*  297        *  The  defendant's  conduct  of  his  case,  even  the  language 

used  by  his  counsel  at  the  trial,  may  aggravate  the  dam- 
ages.^ So  a  plea  of  justification,  if  not  proved,  will  enhance  the 
damages.^ 

If  other  words,  not  actionable  j?gr  se,  yet  highly  injurious,  were 
uttered  on  the  same  occasion  as  the  words  complained  of,  these 
other  words  may  clearly  be  given  in  evidence  as  an  aggravation 
of  the  actionable  words,  and  as  showing  the  animus  of  the  defend- 
ant. "  Where  a  wrongful  act  is  accompanied  by  words  of  con- 
tumely and  abuse,  the  jury  are  warranted  in  taking  that  into 
consideration,  and  giving  retributory  damages."  ^ 

And  where  there  has  been  no  express  malice,  gross  negligence 
on  the  part  of  the  proprietor  of  a  newspaper  in  allowing  the  libel 
to  appear  in  its  columns,  ma}'-  be  proved  to  enhance  the  damages.'^ 

But  in  all  these  cases  the  malice  proved  must  be  that  of  the 
defendant.  If  two  be  sued,  the  motive  of  one  must  not  be  al- 
lowed to  aggravate  the  damages  against  the  other. ^  Nor  should 
the  improper  motive  of  an  agent  be  matter  of  aggravation  against 
his  principal.^ 

*298  *(ii.)  Uxtent  of  Publication. 

The  attention  of  the  jury  should  be  especially  directed  to  the 
mode  and  the  extent  of  publication.     If  the  libel  was  sold  to  the 

1  Stuart  V.  Lovell,  2  Stark.  93 ;  Pearce  v.  Omsby,  1  M.  &  Rob.  455  ;  Symmons  v. 
Blake,  ib.  477  ;  2  C.  M.  &  E.  416  ;  4  Dowl.  263  ;  1  Gale,  182. 

2  Per  Tindal,  C.  J.,  in  Pearson  v.  Lemaitre,  5  M.  &  Or.  719  ;  12  L.  J.  Q.  B.  253. 

8  Finnerty  v.  Tipper,  2  Camp.  72  ;  May  v.  Brown,  3  B.  &  Cr.  113  ;  4  D.  &  R.  670. 
4  Per  Pollock,  C.B.,  Darby  v.  Ouseley,  25  L.  J.  Ex.  230,  233  ;  Blake  v.  Stevens  and 
others,  4  F.  &  F.  235  ;  11  L.  T.  543  ;  Risk  Allah  Bey  v.  Whitehurst,  18  L.  T.  615. 

6  Simpson  v.  Robinson,  12  Q.  B.  511  ;  18  L.  J.  Q.  B.  73 ;  13  Jur.  187.  See  ante, 
p.  274. 

.     6  Per  Byles,  J.,  10  C.  B.  N.  S.  308. 

7  Smith  V.  Harrison,  1  F.  &  F.  565. 

8  Clark  V.  Newsam,  1  Ex.  131,  139. 

9  Carmichael  v.  Waterford  and  Limerick  Ky.  Co.,  13  Ir.  L.  R.  313 ;  Robertson  v. 
Wylde,  2  Moo.  &  Rob.  101. 

264 


EVIDENCE   OF   GOOD   CHAKACTER. 


298 


public  indiscriminately,  heavy  damages  should  be  given,  for  the 
defendant  has  put  it  out  of  his  power  to  recall  or  contradict  his 
statements,  should  he  desire  to  do  so.^ 

If  the  libel  has  appeared  in  a  newspaper,  proof  that  the  par- 
ticular number  containing  the  libel  was  gratuitously  circulated  in 
the  plaintiff's  neighborhood,  or  that  its  sale  was  in  any  way  es- 
pecially pushed,  wiU  enhance  the  damages.^  Evidence  of  the 
mode  and  extent  of  publication  is  admissible  with  a  view  to 
damages,  even  where  the  publication  has  been  admitted  on  the 
pleadings.^  (a) 

(iii.^  Plaintiff's  Good  Character. 

The  plaintiff  cannot  give  evidence  of  general  good  character  in 
aggravation  of  damages  merely,  unless  such  character  is  put  in 
issue  on  the  pleading  ;  or  has  been  attacked  by  the  cross  exami- 
nation of  the  plaintiff's  witnesses  ;  for  till  then  the  plaintiffs 
character  is  presumed  good.*  (6)     As  to  when  such  evidence  is 

i  Per  Lord  Denman,  9  A.  &  E.  149. 

2  Gathercole  v.  Miall,  15  M.  &  W.  319  ;  15  L.  J.  Ex.  179 ;  10  Jur.  337. 
8  Vines  v.  Serell,  7  C.  &  P.  163. 

*  Cornwall  v.  Richardson,  Ky.  &  M.  305  ;  Guy  v.  Gregory,  9  C.  &  P.  584,  7  ;  Brine 
V.  Bazalgette,  3  Ex.  692  ;  18  L.  J.  Ex.  348. 


(a)  See  Fry  v.  Bennett,  4  Duer,  247, 
651. 

(h)  Klumphv.  Dunn,  m  Penn.  St.  141; 
Chubb  V.  Ysell,  34  Penn.  St.  114  ;  Hard- 
ing V.  Brooks,  5  Pick.  244,  247  ;  Martin 
V.  Hooker,  7  Cold.  130  ;  Cooper  v.  Francis, 
37  Texas,  445  ;  Miles  v.  Vanhorn,  17  Ind. 
245.  See  Downey  v.  Dillon,  52  111.  442  ; 
Haun  V.  Wilson,  28  Ind.  296  ;  Wilson  v. 
Barnett,  45  Ind.  163.  The  common  alle- 
gation of  good  character  is  superfluous. 
Pink  V.  Catanich,  51  Cal.  420.  Evidence 
of  character  not  attacked  is  not  admis- 
sible. Shroyer  V.  Miller,  3  W.  Va.  158; 
Adams  v.  Lawson,  17  Gratt.  250.  But 
the  plaintiff's  position  in  life,  his  wealth 
and  influence,  may  be  shown  as  evidence 
of  the  extent  of  the  injury  which  he  has 
sustained.  Clements  v.  Maloney,  55  Mo. 
353 ;  Buckley  v.  Knapp,  48  Mo.  152  ; 
Polston  V.  See,  54  Mo.  291  ;  Fowles  v. 
Chichester,  26  Ohio  St.  9;  Harding  v. 
Brooks,  5  Pick.  244,  247;  Tolleson  v.  Po- 
sey, 32  Ga.  372  ;  Kiumpli  v.  Dunn,  supra; 
Bechler  v.  Steever,  2  Whart.  313 ;   Ben- 


nett V.  Hyde,  6  Conn.  24 ;  Case  v.  Marks, 
20  Conn.  248  ;  Adcock  v.  Marsh,  8  Ired. 
360;  Humphries  v.  Parker,  52  Maine,  502; 
Karney  v.  Paislej',  13  Iowa,  89;  Hosley  v. 
Brooks,  20  111.  1651.  On  the  other  hand 
it  is  held  that  the  plaintiS"'s  poverty  can- 
not be  shown.  Pool  v.  Devers,  30  Ala. 
672.  The  plaintiff  cannot  in  Alabama 
show  that  he  was  a  minister,  without  a 
suitable  averment  of  the  fact.  Gandy  v. 
Humphries,  35  Ala.  617.  The  defendant's 
wealth  and  position  in  life  may  be  shown 
for  the  same  purpose  of  showing  the  extent 
of  the  injury  inflicted.  Fowles  v.  Chich- 
ester ;  Buckley  v.  Knapp  ;  Polston  v.  See, 
and  other  cases  supra  ;  Lewis  v.  Chapman, 
19  Barb.  252;  Tillotson  v.  Cheethara,  3 
Johns.  56  ;  Barber  v.  Barber,  33  Conn. 
335  ;  Karney  v.  Paisley,  13  Iowa,  89;  Jus- 
tice V.  Kirlin,  17  Ind.  588  ;  Brown  v. 
Barnes,  39  Mich.  211.  Especially  when 
exemplary  damages  are  to  be  imposed, 
otherwise  the  defendant  might  not  be  made 
to  smart.  Hayner  v.  Cowden,  27  Ohio 
St.  292.  See  Alpin  v.  Morton,  21  Ohio 
265 


298 


DAMAGES. 


admissible  under  special  circumstances  to  show  that  the  libel  was 
false  to  the  knowledge  of  the  defendant,  and  must  therefore  have 
been  written  maliciously,  see  ayite^  p.  275,  Fountain  v.  Boodle. ^ 

1  3  Q.  B.  5  ;  2  G.  &  D.  455. 

Miles  V.  Vanhom,  17  Ind.  245  ;  McBee  v. 
Fulton,  47  Md.  403;  1  Wharton,  Ciini. 
Law,  §  636  (7tli  ed.).  See  Downey  v.  Dil- 
lon, 52  Ind.  442;  Haun  v.  Wilson,  28 
Ind.  296.  But  where  the  evidence  of  the 
defendant  touches  the  plaintiff's  general 
character  he  may  according  to  some  of  the 
authorities  bring  similar  evidence  in  re])ly. 
Downey  ■;;.  Dillon,  supra;  Byrket  r. 
Monohon,  7  Blackf.  83  ;  Harding  v. 
Brooks,  5  Pick.  244.  See  Sheehey  v. 
Cokley,  43  Iowa,  183.  But  see  Houghtal- 
ing  V.  Kelderhouse,  infra.  This  appears 
to  be  deemed  true  according  to  the  reason- 
ing in  Harding  v.  Brooks  whenever  the 
charge  is  of  the  commission  of  a  crime  and 
evidence  of  its  truth  is  produced  ;  but  it 
may  well  be  doubted  if  this  at  least  is  not 
too  broad.  There  can  be  no  good  founda- 
tion for  such  evidence  as  rebuttal  except 
where  the  charge  sought  to  be  proved  true 
touches  the  general  character  of  the  plain- 
tiff. The  evidence  should  be  of  a  nature 
to  overcome  the  defendant's  evidence.  It 
need  hardly  be  said  that  some  of  the  crimi- 
nal offences  of  the  law  do  not  afl'ect  general 
character  ;  and  this  distinction  is  in  effect 
recognized  in  Downey  v.  Dillon,  and  in 
Haun  V.  Wilson,  supra.  General  good 
reputation  or  character  would  go  a  small 
way  towards  making  it  improbable  that 
the  plaintiff  would  e.g.  publish  a  libel. 
In  the  cases  above  mentioned  the  evidence 
of  general  reputation  was  received  against 
a  charge  of  perjury.  See  also  Sheehey  v. 
Cokley,  43  Iowa,  183,  where  it  was  held 
that  evidence  of  general  reputation  for 
chastity  was  admissible  to  rebut  evidence 
tending  to  prove  a  charge  of  whoredom. 
But  according  to  the  New  York  authorities 
(which  are  distinguished  in  Sheehey  v. 
Cokley)  evidence  of  the  plaintiffs  general 
good  character  is  inadmissible  in  reply  to 
evidence  offered  to  show  the  truth  of  the 
charge  ;  though  it  is  otherwise  in  criminal 
cases.  Hough taling  v.  Kelderhouse,  2 
Barb.  149  ;  s.  c.  1  Comst.  530;  Bratt  v. 
Andrews,  4  Comst.  493;  overruling  Euan 
V.  Perry,  3  Caines,  120,  and  Townsend  v. 


St.  536;  Fry  v.  Bennett,  4  Duer,  247,  262. 
See  however,  as  holding  that  mere  wealth 
is  not  to  be  considered.  Palmer  v.  Hos- 
kins,  28  Barb.  90;  Ware  v.  Curtledge,  24 
Ala.  622;  Morris  v.  Barker,  4  Harr.  (Del.) 
620.  But  Palmer  v.  Hoskins  concedes  that 
the  defendant's  standing  in  society  may  be 
taken  into  account.  The  defendant  clearly 
cannot  show  his  own  poverty  in  mitiga- 
tion. Case  V.  Marks,  20  Conn.  248.  The 
sole  question  is,  how  much  injury  has  the 
plaintiff  sustained  ?  and  the  word  of  a 
poor  man  may  carry  as  much  weight  as 
that  of  a  rich  man.  The  plaintiffs  stand- 
ing need  not  be  averred  in  the  declaration. 
Klumph  V.  Dunn,  supra.  Nor  probably 
need  the  defendant's. 

Of  course  the  plaintiff  may  defend  his 
character  when  the  other  party  whether  on 
a  plea  of  the  truth  or  in  mitigation  of  dam- 
ages assails  it.  All  the  cases  s^q^ra  agree 
upon  this  point.  So  too  it  is  agreed  that 
the  defendant  under  proper  pleadings  (see 
ante,  p.  177,  note)  may  give  evidence  to 
establish  the  truth  or  to  mitigate  the  dam- 
ages ;  but  it  is  not  agreed  what  evidence 
is  proper  on  behalf  of  the  plaintiff  in  re- 
buttal. The  difficulty  has  been  to  deter- 
mine whether  evidence  of  general  good 
character  is  admissible  to  rebut  particular 
evidence  of  the  truth  {proof  of  the  trath  of 
the  charge  could  not  of  course  be  rebutted) 
or  of  mitigating  circumstances  such  as  cred- 
ible rumors.  It  probably  would  not  be 
urged  at  the  present  day  that  evidence  of 
general  had  character  would  support  a  plea 
of  the  truth  unless  the  charge  in  question 
were  itself  of  general  bad  character,  as  in 
the  case  of  sweeping  written  defamation. 
Leader  v.  State,  4  Texas  App.  162.  Nor 
would  bad  character  in  a  particular  di- 
rection not  connected  with  the  charge 
support  such  a  plea.  Fountain  v.  West, 
23  Iowa,  9.  So  on  the  other  hand  when 
the  defendant's  evidence  of  bad  character 
does  not  touch  the  plaintiff's  general 
character  evidence  in  rebuttal  that  the 
plaintiff's  general  character  is  good  is  not 
admissible  ujion  such  a  plea  (the  truth). 

266 


EVIDENCE  IK  MITIGATION.  *  299 


*  III. Evidence  foe  the  Defendant  in  Mitigation   *  299 

OF  Damages. 

(i.)  Apology  and  Amends. 

By  Lord  Campbell's  Act,i  \^  jg  enacted  "  that  in  any  action  for 
defamation  it  shall  be  lawful  for  the  defendant  (after  notice  in 
writing  of  his  intention  so  to  do,  duly  given  to  the  plaintiff  at  the 
time  of  filing  or  delivering  the  plea  in  such  action),  to  give  in 
evidence,  in  mitigation  of  damages,  that  he  made  or  offered  an 
apology  to  the  plaintiff  for  such  defamation  before  the  commence- 
ment of  the  action,  or  as  soon  afterwards  as  he  had  an  opportunity 
of  doing  so,  in  case  the  action  shall  have  been  commenced  before 
there  was  an  opportunity  of  making  or  offering  such  apology."  (a) 
And  by  s.  2,  "  that  in  an  action  for  a  libel  contained  in  any  public 
newspaper  or  other  periodical  publication,  it  shall  be  competent 
to  the  defendant  to  plead  that  such  libel  was  inserted  in  such 
newspaper  or  other  periodical  publication  without  actual  malice, 
and  without  gross  negligence,  and  that,  before  the  commencement 
of  the  action,  or  at  the  earliest  opportunity  afterwards,  he  inserted 
in  such  newspaper  or  other  periodical  publication  a  full  apology 
for  the  said  libel,  or  if  the  newspaper  or  periodical  publication  in 

1  6  &  7  Vict.  c.  96,  s.  1. 

Groves,  3  Paige,  435.      And  as  we  have  (a)  Ketraction  made  as  near  as  may  be 

already  intimated  proof  of  the  truth  of  the  before  those  who  heard  or  read  the  defama- 

charge  cannot  be  affected  by  evidence  of  tory  language  ( Kent  v.  Bonzey,  38  Maine, 

good  reputation  however  general ;  for  al-  435),  if  full  and  complete,  may  be  shown 

though  the  action  is  for  damage  done  to  in  mitigation.     Hotchkiss  v.   Oliphant,  2 

reputation   it    is   only  the  reputation   to  Hill,   510  ;  Storey  v.  Wallace,  60  111.  51. 

which  the  plaintiff  is  entitled  that  the  law  Secus  perhaps  if  made  after  suit.     Evening 

regards.     The  truth  is  a  perfect  defence.  News  Assoc,  v.  Tryon,  42  Mich.  549.     A 

It  is  equally  clear  upon  a  question  of  retraction  may  be  pleaded  as  an  accord  and 

mitigation  that  to  make  the  plaintiff's  re-  satisfaction.     Storey?;.  Wallace,  60  111.  51. 

butting  evidence  of  good  reputation  proper  The  mere  fact  that  a  retraction  is  demand- 

the  mitigating  facts  must  themselves  have  ed   however,    and   fully   made,    does    not 

touched  the  plaintiff's  character  or  reputa-  amount  to  a  satisfaction  of  damages,  apart 

tion.     If  the  mitigating  facts  do  not  affect  from  any  stipulation  to  that  effect,  even 

the  plaintiff's  reputation  or  character,  as  though  the  retraction  be  read  over  in  MS. 

for  example  where   they  merely  tend  to  to  the  plaintiff  and  ajiproved,  especially  if 

show  provocation,  then  the  plaintiff  can-  not  given  the  same  publicity  as  the  original 

not  introduce   the  evidence  in   question,  defamation,     lb.     If  retraction  be  made  at 

See  post,  p.  305,  note,  for  a  consideration  once  in  the  same  conversation  and  before 

of  the  reverse  case  of  evidence  of  bad  char-  the  same  persons  it  may  be  ]ileaded  in  bar. 

acter  or  reputation.  Trabue  v.  Mays,  3  Dana,  138. 

267 


*  299  DAMAGES. 

which  the  said  libel  appeared  should  be  ordinarily  published  at 
intervals  exceeding  one  week,  had  offered  to  publish  the  said 
apology  in  any  newspaper  or  periodical  publication  to  be  selected 
by  the  plaintiff  in  such  action ;  and  that  every  such  defendant 
shall,  upon  filing  such  plea,  be  at  liberty  to  pay  into  court  a  sum 
of  money  by  way  of  amends  for  the  injury  sustained  by  the  pub- 
lication of  such  libel,  ....  and  that  to  such  plea  to  such  action 
it  shall  be  competent  to  the  plaintiff  to  reply  generallj^ 

*  300    denying  the  whole  of  *  such  plea."  ^     Money  must  be  paid 

into  Court  at  the  time  such  a  pleading  is  delivered,  or  it 
will  be  treated  as  a  nullity ;  ^  though  now,  no  doubt,  on  good 
cause  shown,  a  master  at  Chambers  would  give  a  defendant  leave 
to  pay  money  into  Court  at  any  later  time  under  Judicature  Act 
Rules,  Order  XXX.  r.  1. 

If  the  action  be  remitted  to  a  count}'  court  under  s.  10  of  the 
County  Courts  Act,  1867,  the  defendant  may  still  avail  himself 
of  these  sections  by  giving  to  the  registrar  five  clear  days  before 
the  day  fixed  for  the  hearing,  notice  in  writing  of  his  intention  so 
to  do,  signed  by  himself  or  his  solicitor.-^ 

The  payment  into  Court  under  these  sections  will  in  no  way 
operate  as  an  admission  of  liability,  not  even  to  the  amount  paid 
in,  and  the  jury  should  be  directed  to  assess  the  damages  irrespec- 
tive of  the  sum  so  paid  into  Court.*  The  apology  should  be  full, 
though  it  need  not  be  abject ;  the  defendant  is  not  bound  to  in- 
sert an  apology  dictated  by  the  plaintiff ;  but  it  must  be  such  as 
an  impartial  person  would  consider  reasonably  satisfactory  under 
all  the  circumstances  of  the  case.^  It  should  be  printed  in  type 
of  ordinary  size,  and  in  a  part  of  the  paper  where  it  will  be  seen  ; 
not  hidden  away  among  the  advertisements  or  notices  to  corre- 
spondents.6  The  sufficiency  or  insufficiency  of  an  apology  is  pecu- 
liarly a  question  for  the  jury.^ 

But  wholly  apart  from  these  sections,  and  M'ith  or  with- 

*  301    out  any  apology,  a  defendant  may  now,  under  *  Order 

XXX.  of  the  Judicature  Act  Rules,  pay  money  into  Court 

in  any  action  by  way  of  satisfaction  or  amends,  at  any  time  be- 

1  See  Chadwick  v.  Herapath,  2  C.  B.  885  ;  16  L.  J.  C.  P.  104  ;  4  D.  &  L.  653. 

2  8  &  9  Vict.  c.  75,  s.  2.  ^  See  County  Court  Rules,  1875,  Order  XX.  r.  4. 

4  Jones  V.  Mackie,  L.  R.  3  Ex.  1  ;  37  L.  J.  Ex.  1 ;  16  W.  E.  109  ;  17  L.  T,  151. 

5  Risk  Allah  Bey  v.  Johnstone,  18  L.  T.  620. 

6  Lafone  v.  Smith,  3  H.  &  X.  735  ;  28  L.  J.  Ex.  33  ;  4  Jur.  IT.  S.  1064. 

7  Risk  Allah  Bey  v.  Johnstone,  18  L.  T.  620. 

268 


ABSENCE   OF  MALICE.  *  301 

tween  service  of  the  writ,  the  time  of  delivering  his  defence,  or 
by  leave  of  a  master  at  Chambers  at  any  later  time.  If  such  pay- 
ment be  made  before  delivering  his  statement  of  defence,  he  should 
at  once  give  the  plaintiff  notice  that  he  has  paid  in  such  money ; 
and  in  any  and  every  case  he  should  plead  the  fact  of  payment 
into  Court  in  his  statement  of  defence.  Such  payment  will  in  no 
way  operate  as  an  admission  of  liability ;  ^  and  any  other  defence 
can  be  pleaded  at  the  same  time,  even  a  justification.^ 

Illustrations. 

To  an  action  for  libel  in  a  newspaper,  the  defendant  pleaded  a  defence  under  6  &  7 
Vict.  c.  96,  s.  2,  and  paid  £5  into  Court.  The  jury  found  the  apology  insufficient,  and 
awarded  the  plaintiff  20s.  damages.  Held  that  the  plaintiff  was  only  entitled  to  £1,  as 
he  had  not  accepted  the  £5,  and  taken  it  out  of  Court.  Jones  v.  Mackie,  L.  R,  3 
Ex.  1  ;  37  L.  J.  Ex.  1  ;  16  W.  R.  109  ;  17  L.  T.  151.  See  also  Lafone  v.  Smith  and 
others,  3  H.  &  N.  735  ;  28  L.  J.  Ex.  33  ;  4  Jur.  N.  S.  1064  ;  4  H.  &  N.  158  ;  5  Jur. 
N.  S.  127. 

(ii.)  Absence  of  Malice. 

As  a  rule,  unless  the  occasion  be  privileged,  the  motive  or  in- 
tention of  the  speaker  or  writer  is  immaterial  to  the  right  of  action  : 
the  Court  looks  only  at  the  words  employed  and  their  effect  on 
the  plaintiff's  reputation.  But  in  all  cases,  in  the  absence 
of  malice,  though  it  may  not  be  *  a  bar  to  the  action,  it  may  *  302 
yet  have  a  material  effect  in  reducing  the  damages.  The 
plaintiff  is  still  entitled  to  reasonable  compensation  for  the  injury 
he  has  suffered ;  but  if  the  injury  was  unintentional,  or  was  com- 
mitted under  a  sense  of  duty,  or  through  some  honest  mistake, 
clearly  no  vindictive  damages  should  be  given,  (a)     In  every 

1  Berdan  v.  Greenwood,  3  Ex.  D.  251  ;  47  L.  J.  Ex.  628 ;  26  W.  R.  902  ;  39  L.  T. 
223. 

2  Hawkesley  v.  Bradshaw  (C.A.),  5  Q.  B.  D.  302  ;  49  L.  J.  Q.  B.  333  ;  28  W.  R. 
557  ;  42  L.  T.  285  ;  ovemiling  O'Brien  v.  Clement,  15  M.  &  W.  435 ;  15  L.  J.  Ex.  285  ; 
3  D.  &  L.  676  ;  10  Jur.  395  ;  and  Barry  v.  M'Grath,  Ir.  R,  3  C.  L.  576, 

(a)  See  Finney  v.  Smith,  31  Ohio  St.  454.     The  hurry  incident  to  the  prepar- 

529  ;  Stevens  v.    Handley,   Wright,  121  ;  ation  and  publication  of   a  daily   news- 

Rearick  v.  Wilcox,   81  111.   77.     The  ex-  paper  may  be   considered    by   the  jury, 

citemeut  of  an  election  cannot  be  taken  as  not   as   excuse  or  justification,    but  as  a 

mitigation.     Rearick  v.  Wilcox.     For  the  circumstance  characterizing  the  libel  and 

liability  of  newspapers  in  such  cases,  see  in  fixing  the  damages  ;  as  where  an  article 

ante,  p.  157;  Hamilton  v.  Eno,  81  X.  Y.  is  brought  in  and  inserted  at  the  last  mo- 

116  ;    Scripps  v.    Reilly,    38    Mich.    10  ;  ment  before  printing,  due  care  under  the 

Detroit  Post  Co.  v.  McArthur,  16  Mich,  circumstances  being  exercised.     Scripps  v. 

269 


*  302  DAIMAGES. 

case  therefore  the  defendant  may,  in  mitigation  of  damages,  give 
evidence  to  show  that  he  acted  in  good  faith  and  with  honesty  of 
purpose,  and  not  maHciously.  He  may  show  that  the  remainder 
of  the  libel  not  set  out  on  the  record  modifies  the  words  sued  on  ; 
or  that  other  passages  in  the  same  publication  qualify  them.  But 
he  may  not  put  in  passages  contained  in  a  subsequent  and  dis- 
tinct publication,  unless  the  words  sued  on  are  equivocal  or  am- 
biguous.^ The  fact  that  the  defendant  did  not  originate  the  libel, 
but  innocently  repeated  it,  should  tell  in  his  favor.  Thus,  where 
it  appears  on  the  face  of  a  libel  that  it  is  founded  on  a  statement 
in  a  certain  newspaper,  the  defendant  is  entitled  to  show  that  he 
did  in  fact  read  such  statement  in  that  newspaper,  and  wrote  the 
libel  believing  such  statement  to  be  true.^  So,  if  in  the  libel 
the  defendant  has  named  A.  as  his  informant,  he  may  prove  in 
mitigation  that  he  did  in  fact  receive  such  information  from 
A.  (though  of  course  this  is  no  defence  to  the  action ;  ante., 
p.  162) .3    But  where  the  libel  does  not,  07i  the  face  of  it, 

*  303    *  purport  to  be  derived  from  any  one,  but  is  stated  as  of 

the  writer's  own  knowledge,  there  evidence  is  wholly  in- 
admissible to  show  that  it  was  copied  from  a  newspaper  or  com- 
municated by  a  correspondent.^  Evidence  that  in  another  action 
the  plaintiff  had  already  sued  A.  the  informant  and  recovered 
heavy  damages,  is  altogether  inadmissible.^  But  if  the  defendant 
can  show  that  in  copying  the  libel  from  another  newspaper,  he 
■was  careful  to  omit  certain  passages  which  reflected  strongly  on 
^he  plaintiff,  his  conduct  in  making  such  omissions  is  admissible 
;as  showing  the  absence  of  all  animus  against  the  plaintiff,  and 

1  Cook  V.  Hughes,  R.  &  M.  112  ;  Darby  v.  Ouseley,  1  H.  &  N.  1  ;  25  L.  J.  Ex.  227  ; 
•2  Jur.  N.  S.  497. 

2  R.  ®.  Burdett,  4  B.  &  Aid.  95  ;  Mullett  v.  Hulton,  4  Esp.  248. 

8  Semble,  per  Gibbs,  C.J.,  in  Mills  and  wife  v.  Spencer  and  wife  (1817),  Holt,  N.  P. 
533  ;  East  v.  Chapman,  M.  &  M.  46  ;  2  C.  &  P.  570  ;  Charlton  v.  Watton,  6  C.  &  P. 
:885  ;  Bennett  v.  Bennett,  6  C.  &  P.  588  ;  Duncombe  v.  Daniell,  2  Jur.  32  ;  8  C.  & 
P.  222  ;  1  W.  W.  &  H,  101  ;  cited  7  Dowl.  472  ;  Davis  v.  Cutbush  and  others,  1  F.  & 
;F.  487.  *  Talbutt  v.  Clark  and  another,  2  Moo.  &  Rob.  312. 

6  Creevy  v.  Carr,  7  C  &  P.  64. 

Re  illy,  38  Mich.  10.     But  express  malice  in  v.  Mc  Arthur,  16  Mich.  447.     No  mitiga- 

an  employee  who  has  written  a  libel  cannot  tion  is  to  be  found  in  the  importance  of 

be  used  against  the  employer  for  such  pur-  tlie  publication  alone.    Hamilton  v.  Eno, 

pose,  if  he  was  ignorant  of  the  publication,  81  N.  Y.  116. 
and  not  negligfeit.     lb. ;  Detroit  Post  Co. 

270 


ABSENCE   OF   MALICE.  *  303 

this  necessarily  involves  the  admissibility  of  the  original  libel 
copied.^ 

I  have  thus  attempted  to  reconcile  cases  which  are  generally  considered 
in  conflict.  In  Talbutt  v.  Clark,^  Lord  Denman  says  :  —  "I  know  that  in 
a  case  in  the  Common  Pleas  it  has  been  held  that  a  previous  statement 
in  another  newspaper  is  admissible ;  but  even  that  decision  had  been  very 
much  questioned."  His  Lordship  probably  referred  to  Saunders  v.  Mills.^ 
And  thereupon  Mr.  Pitt-Taylor,  in  the  last  edition  (1878)  of  his  Law  of 
Evidence,  p.  316,  remarks:  "However,  by  the  subsequent  recognition 
of  Saunders  v.  Mills,  in  Pearson  v.  Lemaitre,^  the  case  of  Talbutt  v. 
Clark  would  seem  to  be  indirectly  overruled."  But  with  all  deference 
to  that  learned  writer,  the  decision  in  Saunders  v.  Mills  was  that  evidence 
that  many  other  papers  besides  the  defendant's  had  also  copied  the  state- 
ment from  the  Observer  was  t'wadmissible ;  evidence  that  defendant  had 
copied  it  from  the  Observer  into  his  own  paper  had  been  admitted  appar- 
ently without  question  at  the  trial ;  and  in  allowing  that  evidence,  Tindal, 
C.J.,  says  : ^  "It  appeared  to  me  I  had  gone  the  full  length."  Tliere  is  no 
real  conflict  between  the  decisions  in  Saunders  v.  Mills  or  Pearson 
*  V.  Lemaitre  and  that  in  Talbutt  v.  Clark.  I  think,  therefore,  *  304 
that  the  last  case  must  still  be  regarded  as  good  law. 

Illustrations. 

The  defendant  published  an  inaccurate  report  of  proceedings  in  a  court  of  justice, 
reflecting  on  the  character  of  the  plaintiff ;  any  evidence  to  show  that  the  defendant 
honestly  intended  to  present  a  fair  account  of  what  took  place,  and  had  blundered 
through  inadvertence  solely,  was  held  admissible  by  Coleridge,  J.  Smith  v.  Scott, 
2  Car.  &  Kir.  580. 

And,  therefore,  evidence  of  what  really  did  take  place  at  the  trial  is  admissible  ; 
though  no  evidence  can  be  given  of  the  truth  or  falsehood  of  the  statements  there 
made.     East  v.  Chapman,  M.  &  M.  46  ;  2  C.  &  P.  570  ;  Vessey  v.  Pike,  3  C.  &  P.  512. 

"Where  a  newspaper  published  the  report  of  a  company  containing  reflections  on  the 
j)laintiff,  their  manager,  Wightman,  J.,  directed  the  jury  that  if  they  were  satisfied 
such  publication  was  made  innocently,  and  with  no  desire  to  injure  the  plaintiff",  they 
might  give  nominal  damages  only.     Davis  v.  Cutbush  aud  others,  1  F.  &  F.  487. 

On  the  day  of  the  nomination  of  candidates  for  the  representation  of  the  borough 
of  Finsbury,  the  defendant  published  in  the  Morning  Post  certain  facts  discreditable  to 
one  of  the  candidates,  the  plaintiff",  which  he  alleged  he  had  heard  from  one  Wilkinson 
at  a  meeting  of  the  electors.  Held,  that  Wilkinson  was  an  admissible  witness  to  prove, 
in  mitigation  of  damages,  that  he  did  in  fact  make  the  statement  which  the  defendant 
had  published  at  the  time  and  place  alleged.  Duncombe  v.  Daniell,  2  Jur.  32  ;  8  C. 
&  P.  222  ;  1  W.  W.  &  H.  101. 

1  Creevy  v.  Carr,  7  C.  &  P.  64;  Creighton  v.  Finlay,  Arm.  Mac.  &  Ogle  (Ir.)  385. 

2  2  Moo.  &  Rob.  312.  »  6  Bing.  213  ;  3  M.  &  P.  520. 
*  5  M.  &  Gr.  719.                                                6  6  Bing.  220. 

271 


*  304  DAMAGES. 


(iii.)  Evidence  of  the  plaintiff^ s  bad  character. 

There  has  been  a  great  conflict  of  opinion  as  to  the  admissibil- 
ity of  evidence  of  the  plaintiff's  general  bad  character,  and  of 
rumors  prejudicial  to  his  reputation.  There  is  no  doubt  as  to 
the  general  rule  that  circumstances,  which,  if  pleaded,  would 
have  been  a  bar  to  the  action,  cannot  be  given  in  evidence  in 
mitisration  of  damages.^     Evidence  of  the  truth  of  the  slander  or 

libel  is  therefore  inadmissible,  unless  a  justification  is 
*  305   pleaded.^     *  Evidence  of  a  rumor  that  the  plaintiff  had  in 

fact  committed  the  offence  charged  against  him  clearly 
falls  short  of  a  justification,  and  is  moreover  objectionable  also 
as  hearsay.  On  the  other  hand,  the  gist  of  the  action  is  the 
injury  done  to  the  plaintiff's  reputation ;  and  if  the  plaintiff  had 
no  reputation  to  be  injured,  surely  he  cannot  be  entitled  to  sub- 
stantial damages.  It  seems  therefore  that  evidence  of  the  plain- 
tiff's general  bad  character  may  be  given  in  mitigation  of  damages, 
but  the  defendant  may  not  go  into  particulars.^  (a)    If,  however, 

1  Speck  V.  Phillips,  7  Dowl.  470.  ^  Uriderwood  v.  Parks,  2  Str.  1200. 

3  Williams  v.  Callender  (1810),   Holt,   N.  P.   307,  n.  ;  Mills  and  wife  v.  Spencer 

and  wife  (1817),  Holt,  N.  P.  533  ; v.  Moor,  1  M.  &  S.  284  ;  Waithman  v. 

"Weaver,  D.  &  R.  N.  P.  C.  10  ;  11  Price,  257,  n.  ;  Rodriguez  v.  Tadmire,  2  Esp.  721  ; 
contrd,  Jones  v.  Stevens,  11  Price,  235  ;  wherein  the  case  of  Earl  of  Leicester  v.  Wal- 
ter, 2  Camp.  251,  is  denied  to  be  law ;  Snowdon  i*.  Smith,  1  M.  &  S.  286,  n.  ;  Wool- 
mer  v.  Latimer,  1  Jur.  119  ;  Bracegirdle  v.  Bailey,  1  F.  &  F.  536. 

(a)  The  English  rule  does  not  obtain  in  lewdness.     Pease   v.  Shippin,  Conroe   v. 

some  of  the  States.     In  Pennsylvania  it  is  Conroe,  and  Fitzgerald  v.  Stewart,  supra ; 

laid  down  that  neither  particular  nor  gen-  Drown  v.  Allen,   91    Penn.   St.  393.     In 

eral  reports  of  the  truth  of  the  charge  or  such  a  case  the  plaintiff  puts  his  general 

of  other  particular  offences  are  admissible  character  in  the  matter  of  the  chrmje  in 

in  evidence  on  behalf  of  the  defendant  for  issue  ;  and  his  character  and  reputation 

any  purpose.     Pease  v.  Shippen,  80  Penn.  thus  far  and  no  further  may  in  this  view 

St.  513  ;  Fitzgerald  v.  Stewart,  53  Penn.  be  shown.     Conroe   v.  Conroe.     In   New 

St.    343  ;    Lul<ehart  v.   Byerly,   ib.    418  ;  York  while  the  plaintiff's  character  may  in 

Long  V.  Brougher,  5  Watts,  439  ;  Conroe  mitigation  be  shown  to  be  bad,  this  can 

V.  Conroe,    47   Penn.   St.   198,  201.     See  only  be  done  by  (1)  such  reports  in  the 

also    Hackett   v.    Brown,    2    Heisk.   264  ;  neighborhood  as  amount  to  reputation  for 

Wilson  V.  Fitch,  41  Cal.  363,  384  (where  general  bad   character,  or  (2)   such  facts 

this  is  incorrectly  said  to  be  the  general  within  the  defendant's  own  knowledge  as 

view).     The  plaintiff's  general  reputation  may  afl'ord  a  reasonable  ground  of  belief, 

may  however  under  proper  pleadings  (the  actually  entertained,  that  the  plaintiff'  was 

general  issue  alone)  be  assailed  in  Pennsyl-  guilty  of  the  off"euce  charged.     Bush   v. 

vania  where  the  charge  is  against  general  Prosser,  UN.  Y.  347;  Mapes  v.  Weeks, 

character  though  in  a  particular  direction,  4  Wend.   659  ;    Root  v.   King,  7  Cowen, 

as  where  the  charge  is  of  general  unclias-  629;    Oilman    v.   Lowell,  8  Wend.   579; 

tity  in  distinction  from  a  particular  act  of  Hatfield   v.   Lasher,    81   N.  Y.   246.      In 

272 


plaintiff's  bad  chakactek. 


305 


the  plaintiff  goes  into  the  box,  he  can  of  course  be  cross-exam- 
ined "  to  credit "  on  all  the  details  of  his  previous  life ;  but 
unless  such  details  are  material  to  the  issue  the  defendant  must 
take  the  plaintiff's  answer  and  cannot  call  evidence  to  contra- 
dict it. 

Rumors  as  to  plaintiff's  general  bad  character  will  not  however 


other  words  (1)  the  mere  fact  that  reports 
of  the  bad  character  of  the  plaintiff  are  in 
circulation  is  not  enough  ;  the  reiiorts  must 
amount  to  reputation  of  bad  character  and 
thus  show  actual  loss  of  good  repute ; 
they  must,  it  seems,  be  wide-spread  and 
definite;  (2)  reports  however  general  or 
fiiL-ts  naturally  suggestive  of  the  plaintiff's 
guiltiness  of  any  particular  offence  charged 
are  not  admissible  for  any  purpose  unless 
known  at  the  time  to  the  defendant  and 
reasonably  believed  to  be  true.  See  also 
in  addition  to  the  New  York  cases  above 
cited  Proctor  v.  Houghtding,  37  ilich. 
41  ;  Fitzgerald  v.  Stewart,  53  Penn.  St. 
343  ;  Quinu  v.  Scott,  22  Minn.  456.  In 
Illinois  and  in  Alabama  the  position  is 
broadly  taken  that  reports  of  guiltiness, 
though  general,  are  inadmissible  in  bar  or 
in  mitigation.  Strader  v.  Snyder,  67  111. 
404;  Sheehan  v.  Collins,  20  111.  325; 
Scott  V.  ]\IeKinnish,  15  Ala.  662.  See 
Bradley  v.  Gibson,  9  Ala.  406. 

The  English  rule  however  very  widely 
prevails.  Dillard  v.  Collins,  25  Gratt. 
343,  350  ;  McCurry  v.  McCurry,  82  N. 
Car.  296  ;  Harding  v.  Brooks,  5  Pick. 
244  ;  Stone  v.  Varney,  7  Met.  86  ;  Watson 
V.  Moore,  2  Cush.  133,  141  ;  Leonard  v. 
Allen,  11  Cush.  241  ;  Parkhurst  v.  Ketch- 
urn,  6  Allen,  406  ;  Clark  v.  Brown,  116 
Mass.  504  ;  Peterson  v.  Morgan,  ib.  350  ; 
Bridgman  v.  Hopkins,  34  Vt.  532  ;  Mc- 
Nutt  V.  Young,  8  Leigh,  542  ;  Haley  v. 
State,  63  Ala.  81 ;  BuUard  v.  Lambert,  40 
Ala.  204  ;  Hadjo  v.  Gooden,  13  Ala.  718 ; 
Martin  v.  Martin,  25  Ala.  201  ;  Ward  v. 
State,  28  Ala.  53  ;  Bailey  v.  Kalamazoo 
Pub.  Co.,  40  Mich.  251  ;  Brown  v.  Barnes, 
39  Mich.  211  ;  Huson  v.  Dale,  19  Mich. 
17  ;  Fowler  v.  Gilbert,  38  Mich.  292  ;  Barr 
V.  Hack,  46  Iowa,  308  ;  Storey  v.  Early,  86 
111.  461 ;  Adams  v.  Smith,  58  111.  417  ; 
Powers  V.  Cary,  64  Maine,  9  ;  Langton  v. 
Hagerty,  35  Wis.  150  ;  Wilson  v.  Noonan, 
ib.   321  ;   Kimball  v.  Fernandez,   41  Wis. 


329  ;  Talmadge  v.  Baker,  22  Wis.  625  ; 
Henry  v.  Norwood,  4  Watts,  347  ;  Sawyer 
V.  Erfert,  2  Nott  &  M.  511 ;  Buford  v.  Mc- 
Luny,  1  Nott  &  M.  268  ;  Lamos  v.  Snell, 
6  N.  H.  413  ;  Wier  v.  Allen,  51  N.  H.  177  ; 
Duval  V.  Davey,  32  Ohio  St.  604,  over- 
ruling Dewitt  V.  Greenheld,  5  (Jhio,  225. 
According  to  these  authorities  (1)  actual 
bad  character  in  the  direction  of  the  charge, 
such  for  example  as  would  bj  shown  by 
proof  of  the  commission  of  other  crimes 
of  the  same  nature  as  that  charged  (Kim- 
ball V.  Fernandez,  supra),  or  (2)  gen- 
eral {i.e.,  wide-spread)  rcputution  of  bad 
character,  such  for  example  as  the  gen- 
eral low  repute  of  the  plaintiff  for  moral 
worth  throughout  the  neighborhood  (Stone 
V.  Varney,  7  Met.  86)  or  general  reports 
throughout  the  neighborhood  that  he  had 
committed  the  offence  charged,  may  be 
shown  in  mitigation  of  damages.  And 
this  too  though  there  be  a  plea  of  the  truth 
of  the  charge,  provided  such  evidence  is 
not  offered  in  support  of  that  plea.  Clark 
V.  Brown,  116  Mass.  504,  509.  See  Stone 
V.  Yarney,  7  Met.  86,  89.  But  evidence 
of  particular  as  opposed  to  general  or  wide- 
spread reports  is  not  admissible  ;  for  such 
would  not  show  that  the  plaintiff  had 
already  lost  that  good  reputation  among 
his  neighbors  (which  of  course  means  a 
general  good  reputation)  for  damage  done 
to  which  he  sues.  See  especially  the  Mas- 
sachusetts cases  above  cited  ;  and  see  La- 
mos V.  Snell,  6  N.  H.  413  ;  Powers  v. 
Cary,  64  Maine,  9  ;  Mapes  v.  Weeks,  4 
Wend.  659  ;  Adams  v.  Hannon,  3  Mo. 
222 ;  Luther  v.  Skeen,  8  Jones,  356  ; 
Stowell  V.  Beagle,  79  111.  525  ;  Storey  v. 
Early,  86  111.  461;  Sawyer  v.  Eifert,  2 
Nott  &  M.  511 ;  Bradley  v.  Gibson,  9  Ala. 
406.  Comp.  Sunman  v.  Brewin,  52  Ind. 
140  ;  Leader  v.  State,  4  Texas,  Apn.  162. 
And  the  evidence,  it  seems,  should  relate  to 
the  general  subject  of  the  offence  charged. 
See  Clark  v.  Brown.  116  Mass.  504  ;  Wil- 
18  273 


305 


DAIHAGES. 


be  admissible  in  evidence  unless  they  be  shown  to  have  existed 
previously  to  the  alleged  slander  or  libel ;  for  otherwise  they  may 
have  been  occasioned  by  the  defendant's  own  publication,  in 
which  case  they  should  rather  aggravate  than  diminish  the  dam- 
ages.^ (a)  The  law  on  this  point  was  much  discussed  in  Bell  v. 
Parke  ;  ^  and  it  was  decided  that  evidence  of  antecedent 
*  306  general  reputation  of  plaintiff's  *  bad  character  is  admis- 
sible, and  so  is  evidence  that  the  plaintiff  had  certain 
vicious  habits  which  would  lead  him  to  commit  such  acts  as  that 
ascribed  to  him  in  the  slander.  But  that  evidence  of  a  general 
report  that  plaintiff  had  actually  committed  the  particular  offence 

1  Thompson  v.  Nye,  16  Q.  B.  175  ;  20  L.  J.  Q.  B.  85  ;  15  Jur.  285. 

2  11  Ir.  C.  L.  R.  413. 


son  V.  Noonan,  35  Wis.  321 ;  Lambert  v. 
Pharis,  3  Head,  622.  The  question  to 
he  asked  therefore  is  what  reputation  the 
plaintiff  geneially  bore  in  the  direction  of 
the  charge,  or  in  regard  to  the  charge 
itself,  among  those  who  know  him  at  the 
time  of  the  publication  (see  Dufresne  v. 
■\Veise,  46  Wis.  290  •  Senter  v.  Carr,  15 
N.  H.  351 ;  Powers  v.  Presgroves,  38  Miss. 
227)  ;  and  though  it  is  often  said,  as  we 
have  seen,  that  facts  cannot  be  treated  as 
mitigation  if  they  were  not  known  to  and 
believed  by  the  defendant  at  the  time  of 
the  publication  (Hatiield  v.  Lasher,  81 
N.  Y.  246  ;  Bush  v.  Prosser,  11  N.  Y. 
347  ;  Cooper  v.  Barber,  24  Wend.  105  ; 
Willover  v.  Hill,  72  N.  Y.  36  ;  Fitzgerald 
V.  Stewart,  53  Penn.  St.  343  ;  Quinn  v. 
Scott,  22  Minn.  456  ;  Gorton  v.  Keeler, 
51  Barb.  475 ;  Proctor  v.  Houghtaling, 
37  Mich.  41),  it  is  apprehended  that  this 
should  be  true  only  of  facts  relating  to  the 
plaintiffs  guilt  (though  insufficient  as  evi- 
dence thereof  in  bar  of  the  action)  and 
]iot  of  matters  affecting  the  plaintifl''s  gen- 
eral reputation  or  character.  If  the  plain- 
tiffs oharacter  was  in  fact  in  low  repute 
among  his  acquaintances  at  large,  he  suf- 
fers less  from  the  publication  than  he 
would  if  this  were  not  the  case  ;  and  the 
defendant's  knowledge  of  his  reputation 
can  make  no  difference  even  if  his  belief 
in  the  trutli  of  the  language  be  necessary. 
If  it  be  said  that  unless  the  defendant  can 
show  that  he  knew  of  the  existence  of  the 
reports  and  believed  them  ( Bush  v.  Prosser 

274 


and  Fitzpatrick  v.  Stewart,  mipi'o )  he  does 
not  cut  down  tb'i  malice  of  the  words,  the 
answer  is  that  a  man  with  a  tarnished  rep- 
utation ought  not  to  recover  punitive  dam- 
ages, and  that  the  evidence  in  question  is 
offered  to  prevent  him  from  recovering 
them.  A  man  who  has  utterly  lost  his 
reputation,  though  unjustly,  has  no  right 
to  substantial  damages,  if  to  ai.y,  against 
one  who  has  not  caused  or  contributed  to 
that  loss  ;  and  if  he  is  not  entitled  to  sub- 
stantial damages  it  is  difficult  to  see  how 
he  can  be  entitled  to  punitive  damages. 
It  is  hardly  to  be  supposed  that  the  dis- 
tinction between  civil  and  criminal  jjrocess 
and  between  slander  and  libel  can  now  be 
narrowed  everywhere  to  such  an  extent  as 
would  follow  from  the  doctrine  in  ques- 
tion. 

It  may  be  added  in  conclusion  that  by 
statute  in  some  of  the  States  matters  in 
mitigation  must  be  pleaded.  Willover  v. 
Hill,  72  N.  Y.  36  ;  Spooner  v.  Keeler,  51 
N.  Y.  527  ;  Langton  v.  Hagerty,  35  Wis. 
150.  In  the  absence  of  statute  however, 
as  we  have  seen,  such  may  be  shown  under 
the  general  issue.  In  Indiana  it  is  not 
necessary  but  it  is  allowable  to  plead  mat- 
ter of  mitigation.  O'Conner  v.  O'Conner, 
27  Ind.  69.  And  mitigating  facts  may 
there  be  given  under  a  plea  in  justifica- 
tion,    lb. 

(a)  Rodgers  v.  Kline,  56  Jliss.  808  ; 
Stone  V.  Varney,  7  Met.  86,  89.  All  the 
cases  proceed  upon  such  an  assumption. 


!  PEOVOCATIOX.  *  306 

>e  slander  was  not  admissible.     The  following  Nisi 
>  must  therefore  be  considered  bad  law.^ 
i.ng  part  of  the  words  complained  of  in  mitigation 
inte^  p.  176. 

Illustrations. 

er  with  stealing  a  watch  ;  a  third  officer  in  the  same  regi- 

\t  he  had  previously  heard  rumors  that  the  plaintiff  had 

^ence  was  rejected  :  and  the  Court  held  that  such  rejec- 

senting).     Bell  t;.  Parke  (1860),  11  Ir.  C.  L.  R.  413. 

reported  to  have  given  a  similar  ruling  in  Dobede  v. 

1880. 

s  previous  conduct  in  provoking  the  publication. 

es,  so  we  have  seen,  the  plaintiff's  conduct  towards 
iit  may  be  a  bar  to  the  action.     If  the  plaintiff  has  at- 
3  defendant  in  the  newspaper,  and  the  defendant  replies 
undue  personality,  and  without  wandering  into  extrane- 
atters,  then  such  reply,  if  made  honestly  in  self-defence,  is 
.leged.2     But  where  the  facts  do  not  amount  to  such  a  de- 
fence, they  may  still  tend  to  mitigate  the  damages,  (a)     "  There 
can  be  no  set-off  of  one  libel  or  misconduct  against  another  ; 
but  in  estimating  *  the  compensation  for  the  plaintiff's  in-    *  307 
jured  feelings,  the  jury  might  fairly  consider  the  plaintiff's 

1  Earl  of  Leicester  v.  "Walter,  2  Camp.  2ol  ;  Richards  v.  Richards,  2  Moo.  &  Rob. 
557  ;  Chalmers  v.  Shackell  and  others,  6  C.  &  P.  475  ;  and  Knobell  v.  Fuller,  Peake's 
Add.  Cas.  139.  ^  See  ante,  p.  228. 

(a)  That  provocation  by  the  plaintiff  Mich.  348.  But  the  cases  show  that  it  is 
may  be  shown  in  mitigation  is  well  settled,  essential  that  the  defendant  should  have 
Miller  v.  Johnson,  79  111.  58  ;  Thomas  v.  been  provoked  by  the  plaintiff.  And  the 
Fischer,  71  111.  576 ;  Freeman  v.  Tinsley,  provocation  should  be  direct  and  imme- 
50  111.  497  ;  Hasley  v.  Brooks,  20  111.  116  ;  diate.  Sheffill  v.  Van  Deusen,  15  Gray, 
Flagg  V.  Roberts,  67  111.  485  ;  Miles  v.  485.  Thus  it  is  not  enough  that  the  plain- 
Harrington,  8  Kans.  425  ;  Bourland  v.  tiff  had  published  an  independent  libel  of 
Eidson,  8  Gratt.  27;  Duncan  v.  Brown,  the  defendant.  Child  v.  Homer,  13  Pick. 
15  B.  Mon.  186  ;  Underbill  v.  Taylor,  2  503.  Nor  that  there  existed  an  inveterate 
Barb.  348  ;  Beardsley  f.  Maynard,  4  Wend,  hostility  between  the  parties.  Porter  v. 
336;  s.  c.  7  Wend.  560  ;  Child  v.  Homer,  Henderson,  11  Mich.  20  ;  Craig  v.  Catlet, 
13  Pick.  503  ;  Ranger  v.  Goodrich,  17  5  Dana,  323 ;  Goodbread  v.  Leadbetter, 
Wis.  78  ;  Powers  v.  Presgroves,  38  Miss.  1  Dev.  &  B.  12.  Though  as  evidence  of 
227;  Jauch  V.  Jauch,  50  Ind.  135;  Mc-  bad  character  it  may  be  shown  in  an  action 
Clintock  V.  Crick,  4  Iowa,  453  ;  Pugh  v.  for  libel  that  the  plaintiff  is  a  conmion 
McCarty,  40  Ga.  444  ;  Hackett  v.  Brown,  libeller.  Maynard  v.  Beardsley,  7  Wend. 
2  Heisk.  264  ;  Whittemore  v.  Weiss,   33  560. 

275 


*  307  DAMAGES. 

conduct,  and  the  degree  of  respect  he  has  shown  for  the  feelings 
of  others."  ^  Thus  evidence  is  admissible  in  mitigation  of  dam- 
ages to  show  that  plaintiff  had  previously  himself  published  a 
libel,  provided  it  be  also  shown  that  this  libel  had  come  to  the 
defendant's  knowledge  and  occasioned  the  publication  of  the  libel 
now  sued  on.^  And  under  the  new  system  of  pleading  inaugu- 
rated by  the  Judicature  Act  such  previous  libels  may  be  made 
the  matter  of  a  counter-claim,  even  though  not  immediately  con- 
nected with  the  words  on  which  plaintiff  is  suing ;  and  the  de- 
fendant may  thus  not  only  reduce  the  amount  of  damages  due  to 
the  plaintiff,  but  even  overtop  the  plaintiff's  claim  and  recover 
judgment  for  the  balance.^  And  where  there  is  no  counter-claim, 
the  previous  conduct  of  the  plaintiff  may  be  ground  for  applying 
to  the  Judge  to  deprive  him  of  costs.  In  Harnett  v.  Vise  and 
wife,'*  Huddleston,  B.,  deprived  a  plaintiff  of  his  costs  on  this 
ground  ;  although  the  jury  found  that  the  plea  of  justification  was 
not  proved,  and  had  given  him  damages  .£10.  And  this  decision 
of  the  learned  Baron  was  upheld  both  in  the  Exchequer  Division 
and  in  the  Court  of  Appeal. 

*  308  *  (v.)  Absence  of  Special  Damage. 

When  any  special  damage  is  alleged,  (a)  the  onus  of  proving 
it  lies  of  course  on  the  plaintiff.  The  defendant  may  call  evi 
dence  to  rebut  the  plaintiff's  proof.  He  may  either  dispute  that 
the  special  damage  has  occurred  at  all,  or  he  may  argue  as  a  point 
of  law  that  it  is  too  remote;^  or  he  may  call  evidence  to  show 
that  it  was  not  the  consequence  of  the  defendant's  words,  but  of 
some  other  cause.  Thus  if  two  newspapers  have  made  each  a 
distinct  charge  against  the  plaintiff,  and  subsequently  the  plain- 

1  Per  Blackburn,  J.,  in  Kelly  v.  Sherlock,  L.  R.  1  Q.  B.  698  ;  35  L.  J.  Q.  B.  213  ; 
12  Jur.  N.  S.  937. 

2  Finnerty  v.  Tipper,  2  Camp.  76  ;  Antony  Pasquin's  Case,  cited  1  Camp.  351 
Tarpley  v.  Blabey,  2  Bing.  N.  C.  437  ;  2  Scott,  642  ;  May  v.  Brown,  3  B.  &  C.  113 
4  D.  &  K.  670  ;  Watts  v.  Eraser,  7  A.  &  E.  223  ;  7  C.  &  P.  369  ;  1  M.  &  Kob.  449 
2  N.  &  P.  157  ;  Wakley  v.  Johnson,  Ry.  &  M.  422. 

3  Quin  V.  Hession,  40  L.  T.  70  ;  4  L.  R.  Ir.  35. 
*  5  Ex.  D.  307  ;  29  W.  R.  7. 

^  See  post,  p.  321. 

(a)  It  must  be  alleged,  to  be  proved.  374  ;  Cook  v.  Cook,  100  Mass.  194  ;  Bas. 

Cary.enter  v.  Bailev,  56  N.  H.  283  ;  s.  c.  sell  v.  Elmore,  48  N.  Y.  561  ;    Geisler  v. 

53  N.  H.  590  ;    Hiltnn  v.  Muzzy,    30  Vt.  Brown,  6  Neb.  254. 
276 


SPECIAL   DAMAGE.  *  308 

tiff  finds  his  business  falling  off,  whichever  paper  he  sues  may- 
endeavor  to  show  that  the  loss  of  trade  is  due  to  the  charge  made 
against  the  plaintiff  by  the  other  paper.  But,  generally  speak- 
ing, a  defendant  does  not  call  evidence  to  rebut  the  special 
damage,  but  relies  upon  the  cross-examination  of  the  plaintiff's 
witnesses. 

IV.  Special  Damage  where  the  words  are  not 

ACTIONABLE  per  se. 

Special  Damage  is  such  a  loss  as  the  law  will  not  presume  to 
have  followed  from  the  defendant's  words  ;  but  which  depends, 
in  part  at  least,  on  the  special  circumstances  of  the  case.  It  must 
therefore  be  proved  by  evidence  at  the  trial ;  and  siiould  always 
be  explicitly  claimed  on  the  pleadings.  In  the  vast  majority  of 
cases  proof  of  special  damage  is  not  essential  to  the  right  of  ac- 
tion.    Thus  it  is  not  necessary  to  prove  special  damage  — 

(i.)  In  any  action  of  libel. 

(ii.)  Wherever  the  words  spoken  impute  to  the  plaintiff  the 
commission  of  any  indictable  offence. 

*  (iii.)  Or  a  contagious  disease.  *  309 

(iv.)  Or  are  spoken  of  him  in  the  way  of  his  profession 
or  trade  ;  or  disparage  him  in  an  office  of  public  trust. 

Such  words  from  their  natural  and  immediate  tendency  to  pro- 
duce injury,  the  law  adjudges  to  be  defamatory,  although  no  spe- 
cial loss  or  damage  is,  or  can  be,  proved.  Though  even  in  these 
cases,  if  any  special  damage  has  in  fact  accrued,  the  plaintiff  may 
of  course  prove  it  to  aggravate  the  damages. 

But  in  all  cases  not  included  in  any  of  the  above  four  classes, 
proof  of  special  damage  is  essential  to  the  cause  of  action  ;  for 
the  words  are  not  actionable  per  se.  The  words  do  not,  ap- 
parently and  upon  the  face  of  them,  import  such  defamation  as 
will  of  course  be  injurious ;  it  is  necessary,  therefore,  that  the 
plaintiff  should  aver  some  particular  damage  to  have  happened. 
And  to  maintain  the  action  the  damage  thus  averred  must  be  the 
natural,  immediate,  and  legal  consequence  of  tlie  words  which 
the  defendant  uttered.  It  is  not  enough  that  his  words  have  in 
fact  produced  such  and  such  damage,  unless  it  can  reasonably 
be  presumed  that  the  defendant,  when  he  uttered  the  words, 
either  knew,  or  ought  to  have  known,  that  sucli  damage  would 

277 


*  309  DAilAGES. 

result.     Such  damage  being  essential  to  the  action,  must  have 
accrued  before  action  brought. 

The  special  damage  necessary  to  support  an  action  for  defama- 
tion where  the  words  are  not  actionable  in  themselves,  must  be 
the  loss  of  some  material  temporal  advantage,  (a)  The  loss  of 
a  marriage,  of  employment,  of  custom,  of  profits,  and  even  of 
gratuitous  entertainment  and  hospitality,  will  constitute  special 
damage  ;  but  not  mere  annoyance  or  loss  of  peace  of  mind,  nor 
even  physical  illness  occasioned  by  the  slanderous  report.  (6) 

Such  loss  may  be  either  the  loss  of  some  right  or  posi- 

*  310    tion  already  acquired,  or  the  loss  of  some  future  *  benefit 

or  advantage  the  acquisition  of  which  is  prevented.  Thus 
if  the  defendant  causes  a  servant  to  lose  his  situation,  or  prevents 
his  getting  one,  by  maliciously  giving  a  false  character ;  in  either 
case  an  action  will  lie,  though  the  words  be  not  actionable  'per  se. 
So  if  he  prevent  either  a  new  comer  from  going  to  the  plaintiff's 
shop,  or  an  old  customer  from  continuing  to  deal  there.  But  in 
either  case,  and  in  every  other,  it  must  be  clearly  proved  that 
the  loss  is  the  direct  result  of  defendant's  words. 


Illustrations. 

Anthony  Elcock,  citizen  and  mercer  of  London,  of  the  substance  and  value  of  £3000, 
sought  Anne  Davis  in  marriage  ;  but  the  defendant  prcemissorum  haud  ignarus,  ac- 
cused her  of  incontineiicy,  wherefore  the  said  Anthony  wholly  refused  to  many  the 
said  Anne.  Held,  sufficient  special  damage.  Verdict  for  the  plaintiff  for  200  marks. 
Davis  V.  Gardiner,  4  Rep.  16  ;  2  Salk.  294  ;  1  Eoll.  Abr.  38. 

So  if  a  man  lose  a  marriage.     Matthew  v.  Crass,  Cro.  Jac.  323. 

In  consequence  of  defendant's  slandering  the  plaintiff,  a  dissenting  minister,  his 
congregation  diminished  :  but  this  was  held  insufficient,  as  it  did  not  appear  that  the 
plaintiff  lost  any  emolument  thereby.  Hopwood  v.  Thorn,  19  L.  J.  C.  P.  94  ;  8  C.  B. 
293  ;  14  Jur.  87.     But  see  Hartley  v.  Herring,  8  T.  R.  130. 

"  If  a  divine  is  to  be  presented  to  a  benefice,  and  one  to  defeat  him  of  it,  says  to  the 
patron  '  that  he  is  a  heretic,  or  a  bastard,  or  that  he  is  excommunicated,'  by  which  the 
patron  refuses  to  present  him  (as  he  well  might  if  the  imputations  were  true),  and  he 
loses  his  preferment,  he  shall  have  his  action  on  the  case  for  those  slanders  tending  to 
such  end."     Davis  v.  Gardiner,  4  Rep.  17. 

Loss  of  a  situation  will  constitute  special  damage.  Martin  v.  Strong,  5  A.  &  E. 
535  ;  1  N.  &  P.  29  ;  2  H.  &  W.  336. 

Or  of  a  chaplaincy.     Payne  v.  Beauwmorris,  1  Liv.  248. 

(a)  It  is  not  enough  to  allege  that  the  that  he  has  lost  the  society  of  his  relatives 

plaintiff  has  been  put  to  great  cost  and  ex-  and  friends.     Bassell  v.  Elmore,  48  N.  Y. 

pense  and  that  e.  g.  he  "  has  had  to  pay  $100  561  ;  Geisler  v.  Brown,  6  Neb.  254. 
costs."   Cook  z;.  Cook,  180  Mass.  194.    Or  (b)  See  post, -p.  did. 

278 


SPECIAL   DAIHAGE.  *  310 

If,  however,  the  dismissal  from  service  be  colorable  only,  the  master  intending  to 
take  the  I'laintifF  back  again,  as  soon  as  the  action  is  over  :  this  is  no  evidence  that  the 
plaintiff's  rei)utation  has  been  impaired,  but  rather  the  contrary.  If,  therefore,  no 
other  special  damage  can  be  proved,  the  plaintiff  should  be  nonsuited.  Coward  v. 
Wellington,  7  C.  &  P.  531. 

If  a  man  be  refused  employment  through  defendant's  slander,  this  is  sufficient  specLal 
damage.     Sterry  v.  Foreman,  2  Car.  &  P.  592. 

*  So,  if  the  agent  of  a  certain  firm  going  to  deal  with  the  plaintiff  be     *  311 
stopped  and  dissuaded  by  the  defendant,  and  this,  although  such  firm  subse- 
quently became  bankrupt,  and  paid  but   12s.  M.  in  the  £,  so  that  had  plaintiff  ob- 
tained the  order  he  would   have   lost   money  by  it.      Storey  v.   ChaUands,  8  C.  & 
P.  234. 

The  loss  of  the  hospitality  of  friends  gratuitously  afforded  is  sufficient  special 
damage.  Moore  v.  Meagher,  1  Taunt.  39  ;  3  Smith,  135  ;  Davies  and  wife  v.  Solomon, 
L.  R.  7  Q.  B.  112  ;  41  L.  J.  Q.  B.  10  ;  20  W.  R.  167  ;  25  L.  T.  799. 

So  is  the  loss  of  any  gratuity  or  present,  if  it  be  clear  that  the  slander  alone  i^re- 
vented  its  receipt.  Bracebridge  v.  Watson,  Lilly,  Entr.  61  ;  Hartley  v.  Herring,  8 
T.  R.  130. 

In  consequence  of  defendant's  words,  a  friend  who  had  previously  voluntarily 
promised  to  give  the  plaintiff,  a  married  woman,  money  to  enable  her  to  join  her  hus- 
band in  Australia,  whither  he  had  emigrated  three  years  before,  refused  to  do  so. 
Held,  sufficient  special  damage.     Corcoran  and  wife  v.  Corcoran,  7  Ir.  C.  L.  R.  272. 

Where  a  vicar  in  open  church  falsely  declared  that  the  plaintiff,  one  of  his  parish- 
ioners, was  excommunicated,  and  refused  to  celebrate  divine  service  till  the  plaintifif 
departed  out  of  the  church,  whereby  the  plaintiff  was  compelled  to  quit  the  church, 
and  was  scandalized,  and  was  hindered  of  hearing  divine  service  for  a  long  time  ;  it 
was  held  that  an  action  lay.     Bai-nabas  v.  Traunter  (1641),  1  Vin.  Abr.  396. 

But  a  mere  apprehension  of  future  loss  cannot  constitute  special  damage.  "  I  know 
of  no  case  where  ever  an  action  for  words  was  grounded  upon  eventual  damages  which 
may  possibly  happen  to  a  man  in  a  future  situation,"  says  De  Grey,  C.J.,  in  Onslow  v. 
Home,  3  Wils.  188  ;  2  W.  Bl.  753.  And  see  Doyley  v.  Roberts,  3  Bing.  N.  C.  835  ; 
5  Scott,  40  ;  3  Hodges,  154. 

The  defendant  said  of  a  married  man  that  he  had  had  two  bastards  :  "  by  reason  of 
which  words  discord  arose  between  him  and  his  wife,  and  they  were  likely  to  have  been 
divorced."  Held,  that  this  constituted  no  special  damage.  Barmund's  Case,  Cro. 
Jac.  473. 

But  where  the  defendant  advertised  in  Hue  and  Cry  that  the  plaintiff  had  been 
guilty  of  fraud,  and  offered  a  reward  for  his  apprehension,  and  the  plaintiff  imme- 
diately sued  on  the  libel,  and  after  action  brought  was  twice  arrested  in  conseriuence 
of  it  ;  he  was  allowed  to  give  evidence  of  these  two  arrests  at  the  trial,  not  indeed  as 
special  damage,  for  they  happened  after  action  brought,  but  in  order  to  show  the  in- 
jurious nature  of  the  libel,  and  that  the  plaintiff  was  at  time  of  action  brought  in 
serious  danger  of  being  arrested.  Goslin  v.  Corry,  7  M.  &,  Or.  342  ;  8  Scott,  N.  R.  21. 
And  see  Ingram  v.  Lawson,  6  Bing.  N.  C.  212  ;  8  Scott,  471  ;  9  C.  &  P.  326  ;  4  Jur. 
151. 

*So  where  the  words  are  not  actionable  jyer  se,  and  no  pecuniary  damage  *  312 
has  followed,  no  compensation  can  be  given  for  outraged  feelings,  nor  for  sick- 
ness induced  by  such  mental  distress,  even  though  followed  by  a  doctor's  bill.  Allsop 
V.  Allsop,  5  H.  &  N.  534  ;  29  L.  J.  Ex.  315  ;  6  Jur.  N.  S.  433  ;  8  W.  R.  449  ;  36  L.  T. 
(Old  S.)  290  ;  Lynch  v.  Knight  and  wife,  9  H.  L.  C.  577  ;  8  Jur.  N.  S.  724  ;  5  L.  T. 
291. 

279 


*  312  DAMAGES. 

Nor  will  the  fact  that  plaintiff  has  been  expelled  from  a  religious  society  of  which 
she  was  a  member,  constitute  si>ecial  damage.  Roberts  et  ux.  v.  Roberts,  5  B.  &  S. 
384  ;  33  L.  J.  Q.  B.  249  ;  10  Jur.  N.  S.  1027  ;  12  W.  R.  909  ;  10  L.  T.  602. 

Loss  of  the  consortium  of  a  husband  is  special  damage.  Per  Lords  Campbell  and 
Cranwcrth  in  Lynch  v.  Knight  and  wife,  9  H.  L.  C.  at  p.  589  ;  but  not  merely  of  the 
society  of  friends  and  neighbors.  Medhurst  v.  Balam,  cited  in  1  Siderfin  397.  Barnes 
V.  Prudlin  or  Bruddel,  1  Lev.  261  ;  1  Sid.  396  ;  1  Ventr.  4 ;  2  Keb.  451. 

The  law  is  the  same  in  America. 

The  refusal  of  civil  entertainment  at  a  public-house  was  held  sufficient  special 
damage.     Olmsted  v.  Miller,  1  Wend.  506. 

So  was  the  fact  that  the  plaintiff  was  turned  away  from  the  house  of  her  uncle, 
where  she  had  previously  been  a  welcome  visitor,  and  charged  not  to  return  till  she 
had  cleared  up  her  character.     Williams  v.  Hill,  19  Wend.  305. 

So  was  the  circumstance  that  persons  who  had  been  in  the  habit  of  so  doing  refused 
any  longer  to  provide  food  and  clothing  for  the  plaintiff.  Beach  v.  Ranney,  2  Hill 
(N.  Y.),  309. 

The  defendant  told  Neiper  that  the  plaintiff  committed  adultery  with  Mrs.  Fuller. 
Neiper  had  married  Mrs.  Fuller's  sister  and  was  an  intimate  friend  of  the  plaintiff's. 
Neiper  thought  it  his  duty  to  tell  the  plaintiff  what  people  were  saying  of  him.  Plain- 
tiff, who  was  hoeing  at  the  time,  turned  pale,  felt  bad,  flung  down  his  hoe,  and  left  the 
field :  lost  his  appetite,  turned  melancholy,  could  not  work  as  he  used  to  do,  and  had 
to  hire  more  help.  Held,  that  such  mental  distress  and  physical  illness  were  not  suflGi- 
cient  to  constitute  special  damage  ;  for  they  did  not  result  from  any  injury  to  the  plain- 
tiff's reputation,  which  had  affected  the  conduct  of  others  towards  him.  The  Court 
said,  in  giving  judgment,  "  It  would  be  highly  impolitic  to  hold  all  language,  wounding 
the  feelino-s  and  affecting  unfavorably  the  health  and  ability  to  labor,  of  another,  a 
ground  of  action  :  for  that  would  be  to  make  the  right  of  action  depend  often  upon 
whether  the  sensibilities  of  a  person  spoken  of  are  easily  excited  or  otherwise  ; 
*  313  his  strength  of  mind  *to  disregard  abusive  insulting  remarks  concerning  him, 
and  his  physical  strength  and  ability  to  bear  them.  Words  which  would 
make  hardly  an  impression  on  most  persons,  and  would  be  thought  by  them,  and 
should  be  by  all,  undeserving  of  notice,  might  be  exceedingly  painful  to  some,  occa- 
sioning sickness  and  an  interruption  of  ability  to  attend  to  their  ordinary  avocations." 
TerwilHger  v.  Wands,  3  Smith  (17  N.  Y.  R.),  54,  overruling  Bradt  v.  Towsley,  13 
Wend.  253,  and  Fuller  v.  Fenner,  16  Barb.  333.  (a) 

So,  too,  a  husband  cannot  maintain  an  action  for  the  loss  of  his  wife's  services  caused 
by  illness  or  mental  depression  resulting  from  defamatory  words  not  actionable  jxr  se 
being  spoken  of  her  by  the  defendant,  for  the  wife,  if  sole,  could  have  maintained  no 
action.  "  The  facility  with  which  a  right  to  damages  could  be  established  by  pretended 
illness  where  none  exists,  constitutes  a  serious  objection  to  such  an  action  as  this."  Per 
Denio,  J.,  in  Wilson  v.  Goit,  3  Smith  (17  N.  Y.  R.),  445. 

(a)  Adams  v.  Smith,  58  111.  417.  But  stricted  ;  Wilson  v.  Noonan,  35  Wis.  321; 
it  is  said  to  be  otherwise  when  the  words  Rogers  v.  Henry,  32  Wis.  327,  334.  See 
are  actionable  per  se  and  have  been  legally  also  Burt  v.  McBain,  29  Mich.  260  ;  Phil- 
published,  lb.  ;  Swift  V.  Dickerman,  31  lips  v.  Hoyle,  4  Gray,  568  ;  Abrahams  v. 
Conn.  294;  Dufort  v.  Abodie,  23  La.  An.  Kidney,  104  Mass.  222.  The  distinction 
280  •  CaiTDenter  v.  Bailey,  56  N.  H.  283 ;  just  mentioned  however  has  little  to  com- 
s.  c.  53  N.  H.  590;  Scripps  v.  Reilly,  38  mend  it.  Shafer  v.  Ahalt,  48  Md.  171; 
Mich.  10,  20,  in  which  the  right  to  dam-  Prime  v.  Eastwood,  45  Iowa,  640  ;  Hoar 
ages  for  mental  distress  is  still  further  re-  v.  Ward,  47  Vt.  657. 

280 


LOSS   OF   CUSTOM.  *  313 

Special  damage  must  always  be  explicitly  claimed  on  the  plead- 
ings and  strictly  proved  at  the  trial.  And  where  the  words  are 
not  actionable  per  se,  the  plaintiff  will  be  confined  to  the  special 
damage  laid  ;  he  must  either  prove  that,  or  be  nonsuited  ;  he  can- 
not fall  back  on  general  damages,  as  he  can  where  the  words  are 
actionable  per  se.  For  there  are  no  general  damages  to  fall  back 
on  ;  ex  hypothesi  the  words  are  such  as  the  law  will  not  presume 
injurious.  And  so,  too,  where  tlie  special  damage  is  proved,  the 
jury  should  strictly  find  a  verdict  for  the  amount  of  such  special 
damage  merely,  for  the  sum  that  the  plaintiff  has  proved  he  has 
lost  and  no  more.  The  jury  ought  not  to  compensate  the  plaintiff 
for  pain,  mental  anxiety,  or  a  general  loss  of  reputation,  but 
should  confine  their  assessment  to  the  actual  pecuniary  loss  that 
has  been  alleged  and  proved.^  This  rule,  however,  is  frequenti}' 
neglected  in  practice  ;  and  as  soon  as  any  special  damage  is 
proved,  the  words  are  treated  as  though  they  were  actionable 
p)er  se. 

To  allege  generally  that  in  consequence  of  the  defend- 
ant's *  words  the  plaintiff  has  lost  a  large  sum  of  money,  or  *  314 
that  his  practice  or  business  has  declined,  is  not  a  sufficiently 
precise  allegation  of  special  damage.  The  names  of  the  persons 
who  have  ceased  to  employ  the  plaintiff,  or  would  have  com- 
menced to  deal  with  him,  had  not  the  defendant  dissuaded  them, 
must  be  set  out  in  the  statement  of  claim,  or  in  the  particulars ; 
and  they  must  themselves  be  called  as  witnesses  at  the  trial  to 
state  their  reason  for  not  dealing  with  the  plaintiff.  Else  it  will 
not  be  clear  that  their  withholding  their  custom  was  in  conse- 
quence of  defendant's  words  ;  it  might  well  be  due  to  some  other 
cause.^  Loss  of  custom  or  diminution  of  profits,  when  not  spe- 
cifically alleged,  and  the  customers'  names  assigned,  is  general, 
not  special,  damage,  and  can  only  therefore  be  proved  where  the 
words  are  actionable  per  se.^  If  the  plaintiff  cannot  give  the 
names  of  those  who  have  ceased  to  deal  with  him,  or  cannot  prove 
that  their  so  ceasing  is  due  to  the  defendant's  words,  he  must  be 
nonsuited ;  although  there  has  in  fact  been  a  falling  off  in  his 
business. 

1  Dixon  V.  Smith,  5  H.  &  N.  450  ;  29  L.  J.  Ex.  125. 

2  Per  Lord  Keiiyon,  C.J.,  in  Ashley  v.  Harrison,  1  Esp.  48  ;  Peake,  256  ;  prr  Bc^t, 
C.J.,  in  Tilk  v.  Parsons,  2  C.  &  P.  20L 

8  Harrrisou  v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T.  (Old  S.)  298. 

281 


*  314  DAHIAGES. 

The  loss  to  the  plaintiff  must  be  directly  connected  with  the  defendant's 
utterance  of  the  words.  If  others  repeat  his  Avords,  with  or  without  addi- 
tions of  their  own,  the  defendant  is  not  liable  for  the  consequences  of  what 
they  say.  And  it  is  only  by  such  repetitions  that  a  general  loss  of  business 
can  be  brought  about.  It  is  true  that  many  traders,  such  as  innkeepers, 
tobacconists,  and  others,  seldom  know  the  names  of  their  customers,  who 
are  often  chance  passers-by.  It  might  therefore  be  urged  that  such  traders 
should  never  be  required  to  state  the  names  of  particular  customers,  whether 
the  words  be  actionable  per  se  or«not.     This  is  the  law  in  Victoria 

*  315    apparently.!     And  in  Fading  v.  Smith,*^  *  Kelly,  C.B.,  after  stating 

with  great  clearness  that  "  the  words  would  not  be  actionable  as  slan- 
der without  proof  of  special  damage,  which  must  be  established  not  merely 
by  general  evidence  that  the  business  has  fallen  off,  but  by  showing  that 
particular  persons  have  ceased  to  deal  with  the  plaintiff,"  —  yet  held  that 
such  evidence  was  properly  received  in  the  case  before  him,  which  he 
deemed  an  action  on  the  case,  and  not  an  action  of  defamation.  It  is  clear, 
therefore,  that  the  late  Lord  Chief  Baron  did  not  mean  to  lay  down  any 
general  rule,  and  that  Hiding  v.  Smith  is  not  to  be  regarded  as  an  authority 
in  actions  of  defamation,  but  merely  as  an  exceptional  case  depending  upon 
its  own  peculiar  facts.  In  a  very  similar  case,^  Lord  Coleridge,  C.  J.,  refused 
to  follow  Riding  v.  Smith  on  this  point ;  as  being  contrary  to  all  previous 
decisions.  In  Clarke  v.  Morgan,^  Grove,  J.,  points  out  the  anomaly  which 
would  follow  if  the  rule  in  Hiding  v.  Smith  were  universally  carried  out. 
The  defendant  has  spoken  to  A.  words  which  are  not  actionable  per  se ;  i.e., 
words  of  such  a  character  that  the  law  will  not  presume  that  they  can  in- 
jure the  plaintiff.  A.  repeats  them  to  B.,  B.  to  C,  C.  to  D.,  and  so  on. 
till  at  last  the  plaintiff's  business  declines.  If  B.,  C,  and  D.  were  called, 
they  would  state  that  they  never  heard  a  word  from  the  defendant  on  the 
matter ;  and  then  it  is  clear  law  that  the  jury  could  only  award  the  plain- 
tiff damages  for  the  loss  of  A.'s  custom,  A.  being  the  one  man  to  whom 
defendant  spoke.^  And  yet,  by  merely  keeping  them  out  of  the  box,  the 
plaintiff  would  (if  Riding  v.  Smith  be  adopted  as  a  general  authority  in 
cases  of  slander)  illegally  recover  damages  for  the  loss  of  the  custom  of  B., 
C,  D.,  K,  and  P.  Lindley,  J.,  in  the  same  case®  expresses  his  opinion 
that  the  decisions  in  "Ward  v.  Weeks  and  Parkins  v.  Scott  have  in  no  way 
been  overruled  by  Riding  v.  Smith  and  Evans  v.  Harries.     As  a  rule,  words 

1  See  Brady  v.  Youlden,  post,  p.  31 7. 

2  1  Ex.  D.  91 ;  45  L.  J.  Ex.  281  ;  24  AV.  "R.  487  ;  34  L.  T,  500, 

3  Kent  V.  Stone,  Bristol  Summer  Assizes,  ISSO. 
*  38  L.  T.  354. 

6  Dixon  V.  Smith,  5  H.  &.  N.  450  ;  29  L.  J.  Ex.  125 ;  Bateman  and  wife  v.  Lyall 
and  wife,  7  C.  B.  N.  S.  638  ;  Hirst  v.  Goodwin,  3  F.  &  F.  257. 
6  38  L.  T.  355. 

282 


SUBSEQUENT  DAIMAGE.  *  315 

which  cause  loss  of  custom  to  a  trader  are  spoken  of  him  in  the  way  of  his 
trade,  and  are  therefore  actionable  per  se.     And  in  other  cases  of  special 
damage  there  is  no  possible  hardship  in  the  old  rule ;  for  the  plain- 
tiff must  be  aware  of  the  names  of  *  the  master  who  has  dismissed    *  316 
him,  and  of  the  friends  who  formerly  showed  him  hospitality. 

Illustrations. 

The  plaintiff  alleged  that  in  consequence  of  the  defendant's  slander,  she  had  "  lost 
several  suitors."  This  was  held  too  general  an  allegation  :  for  the  names  of  the  suitoi's 
could  hardly  have  escaped  the  plaintiffs  memory.  Barnes  v.  Prudlin,  vcl  Bruddel,  1 
Sid.  396  ;  1  Ventr.  4 ;  1  Lev.  261  ;  2  Keb.  451.  See  also  Hunt  v.  Jones,  Cro.  Jac.  499; 
Davies  and  wife  v.  Solomon,  L.  R.  7  Q.  B.  112  ;  41  L.  J.  Q.  B.  10  ;  20  W.  E.  167; 
25  L.  T.  799. 

The  defendant  slandered  a  dissenting  minister,  who  averred  that  his  congregation 
diminished  in  consequence.  Held,  too  general  an  averment  to  constitute  special  dam- 
age, the  names  of  the  absentees  not  being  given.  Hopwood  v.  Thom,  8  C.  B.  293;  19 
L.  J.  C.  P.  94  ;  14  Jur.  87. 

Such  an  averment  would  have  been  sufficient,  had  the  words  been  spoken  of  the 
plaintiff  in  the  way  of  his  office,  and  so  actionable  per  se.  Hartley  v.  Herring,  8  T.  R. 
130  ;  Evans  v.  Hanies,  1  H.  &  N.  254  ;  26  L.  J.  Ex.  31. 

Dawes  intended  to  employ  the  plaintiflP,  a  surgeon  and  accoucheur,  at  his  wife's  ap- 
proaching confinement ;  but  the  defendant  told  Dawes  that  the  plaintiffs  female  ser- 
vant had  had  a  child  by  the  plaintiff:  Dawes  consequently  decided  not  to  employ  the 
plaintiff :  Dawes  told  his  mother  and  his  wife's  sister  what  defendant  had  said  ;  and 
consequently  the  plaintiff's  practice  fell  off  considerably  among  Dawes'  friends  and 
acquaintance  and  others.  The  fee  for  "one  confinement  was  a  guinea.  Reld,  tliat  the 
plaintiff  was  entitled  to  more  than  the  one  guinea  ;  the  jury  should  give  him  such  a 
sum  as  they  considered  Dawes'  custom  was  worth  to  him  ;  but  that  the  plaintiff  clearly 
could  not  recover  anything  for  the  general  decline  of  his  business,  which  was  caused 
by  the  gossip  of  Dawes'  mother  and  sister-in-law.  Dixon  v.  Smith,  5  H.  &  N.  450  ;  29 
L.  J.  Ex.  125. 

The  law  is  the  same  in  America  :  — 

The  plaintiff  alleged  that  the  defendant's  words  had  "  injured  her  in  her  good  name, 
and  caused  her  relatives  and  friends  to  slight  and  shun  her."  This  was  held  to  disclose 
no  special  damage.     Bassell  v.  Elmore,  48  N.  Y.  R.  563  ;  65  Barbour,  627. 

So  where  the  allegation  was  merely  that  by  reason  of  defendant's  words  "the  plain- 
tiff had  been  slighted,  neglected,  and  misused  by  the  neighbors  and  her  former  associ- 
ates, and  turned  out  of  doors."     Pettibone  v.  Simpson,  66  Barb.  492. 

A  general  allegation  that  by  reason  of  defendant's  acts,  plaintiff  had  been 
*  compelled  to  pay  a  large  sum  of  money,  without  showing  how,  was  held  in-     *  317 
sufficient.     Cook  v.   Cook,  100  Mass.  194  ;  Pollard  v.  Lyon,   1  Otto  (91  U. 
S.),  225. 

But  in  Australia  a  different  rule  apparently  prevails :  — 

To  say  to  the  keeper  of  a  restaurant,  '*  You  are  an  infernal  rogue  and  swindler,"  was 
held,  in  the  Supreme  Court  of  Victoria,  not  actionable  without  proof  of  special  damage, 
as  not  affecting  plaintiff  in  his  trade.     But  the  plaintiff  having  alleged  that,  by  reason 

283 


*  317  DAJMAGES. 

of  the  words,  people  who  used  to  frequent  his  restaurant,  ceased  to  deal  with  him,  it 
was  held  the  special  damage  made  the  words  actionable,  and  that  the  special  damage 
was  sufficiently  alleged  ;  that  the  cases  of  frequenters  of  theatres,  members  of  congrega- 
tions, and  travellers  using  an  inn,  were  excejitions  to  the  rule  requiring  the  names  of 
the  customers  lost  to  be  set  forth.  Brady  v.  Youlden,  Kerferd  &  Box's  Digest  of  Vic- 
toria Cases,  709;  Melbourne  Argus  Reports,  6  Sept.  1867,  scd  qucere. 

Where  the  words  are  not  actionable  without  special  damage,  the  jury,  as 
we  have  seen,  must  confine  their  consideration  to  such  special  damage  as  is 
specially  alleged  and  proved.  It  might,  .therefore,  very  well  be  argued,  on 
the  principle  of  Bonomi  v.  Backhouse,  ^  that  if  any  fresh  damage  followed 
in  the  future,  that  would  constitute  a  fresh  ground  of  action.  And  of  this 
opinion  were  North,  C.J.,  in  Lord  Townshend  v.  Hughes,^  and  Tindal,  C.J., 
in  Goslin  v.  Corry.^  But  Buller,  in  liis  "  Nisi  Prius,"  p.  7,  lays  it  down 
most  di-stinctly,  that  where  a  plaintiff  "  has  once  recovered  damages,  he 
cannot  after  bring  an  action  for  any  other  special  damage,  whether  the 
words  be  in  themselves  actionable  or  not."'*  And  this  rule  is  obviously 
more  practically  convenient :  it  is  also  in  accordance  with  recent  cases,  such 
as  Stone  v.  Mayor  of  Yeovil,^  and  must  therefore,  I  think,  be  considered 
good  law. 

*  318    *  V.    Special  Damage  where  the  words  are 

ACTIONABLE,  per  se. 

Where  special  damage  is  not  essential  to  the  action,  it  may 
still  of  course  be  proved  at  the  trial  to  aggravate  the  damages. 
But  to  entitle  such  evidence  to  be  given,  the  special  damage 
relied  on  must  be  stated  on  the  record  with  the  same  particularity 
as  is  required  where  the  words  are  actionable  only  by  reason  of 
such  special  damage.  The  defendant  is  entitled  to  know  before- 
hand what  case  he  has  to  meet.  Thus,  in  an  action  by  a  trader 
for  words  spoken  of  him  in  the  way  of  his  trade,  evidence  of  a 
general  loss  of  business  is  always  admissible  ;  for  this  is  not  special 
damage,  (a)  But  the  plaintiff  cannot  be  asked  whether  particu- 
lar persons  have  not  ceased  to  deal  with  him,  unless  the  loss  of 

1  9  H.  L.  C.  503  ;  E.  B.  &  E.  662  ;  34  L.  J.  Q.  B.  181. 

2  2  Mod.  150.  *  7  M.  &  Gr.  345  ;  8  Scott  N.  R.  21. 
*  Fitter  v.  Veal,  12  Mod.  542. 

6  1  C.  P.  D.  691;  45  L.  J.  C.  P.  6.57  ;  24  W.  R.  1073  ;  34  L.  T.  874 ;  (C.  A.)  2 
C.  P.  D.  99 ;  46  L.  J.  C.  P.  137  ;  25  W.  R.  240;  36  L.  T.  279,  and  Lamb  v.  Walker, 
3  Q.  B.  D.  389;  45  L.  J.  Q.  B.  451;  26  W.  R.  775;  38  L.  T.  643. 

(a)  So  of  exclusion  from  society.  Burt  v.  McBain,  29  Mich.  260  ;  Phillips  v. 
Hoyle,  4  Gray,  568. 

284 


SPECIAL  DAJklAGE.  *  318 

their  special  custom  is  set  out  in  the  pleadings  as  special  damage. 
It  is  clearly  right  that  the  defendant  should  be  furnished  with 
their  names  before  the  trial. 

But  though  the  special  damage  must  be  laid  as  explicitly 
whether  the  words  be  actionable  or  not,  it  seems  that  in  other 
respects  the  law  is  not  quite  so  strict  as  to  what  constitutes  special 
damage  in  the  first  case  as  in  the  second.  Thus,  where  the  words 
are  nut  actionable  per  se,  we  have  seen  that  mental  distress,  ill- 
ness, expulsion  from  a  religious  society,  &c.,  do  not  constitute 
special  damage.  But  where  the  words  are  actionable  per  se,  the 
jury  may  take  such  matters  into  their  consideration  in  according 
damages.  "Mental  pain  or  anxiety  the  law  cannot  value,  and 
does  not  pretend  to  redress,  when  the  unlawful  act  complained  of 
causes  that  alone;  though  where  a  material  damage  occurs,  and 
is  connected  with  it,  it  is  impossible  a  jury,  in  estimating 
it,  should  altogether  overlook  the  feelings  of  the  *  party  *  319 
interested."  ^  And  had  the  charge  against  Mrs.  Roberts 
been  one  of  felony  I  do  not  think  any  Judge  would  have  excluded 
the  evidence  as  to  her  expulsion  from  her  religious  sect. 

Again,  where  words  are  spoken  of  the  plaintiff  in  the  way  of 
his  profession  or  trade,  so  as  to  be  actionable  per  se,  the  plaintiff 
may  allege  and  prove  a  general  diminution  of  profits  or  decline  of 
trade,  without  naming  particular  customers  or  proving  they  have 
ceased  to  deal  with  him.^  [In  Delegal  v.  Highley,^  Tindal,  C.J., 
refused  to  allow  any  evidence  to  be  given  of  general  loss  of  busi- 
ness, on  the  ground  that  the  law  already  presumed  such  loss  in 
the  plaintiff's  favor ;  but  this  decision  must  now  be  considered 
overruled.]  If,  however,  the  plaintiff  desires  to  go  into  such 
details  at  the  trial,  he  must  plead  them  specially  and  call  the 
customers  named  as  witnesses.  Still,  if  the  customers  are  not 
called  at  the  trial,  or  if  for  any  other  reason  the  proof  of  the 
special  damage  fails,  the  plaintiff  may  still  fall  back  on  the  gen- 
eral damage  and  prove  a  loss  of  income  induced  by  the  slander.* 
This  he  could  not  do,  had  the  words  not  been  actionable  per  se.^ 

1  Per  Lord  Wensleydale,  in  Lynch  v.  Kniglit  and  wife,  9  H.  L.  C.  598.  See  also 
Haythorn  v.  Lawson,  3  C.  &  P.  196;  Le  Fanu  v.  Malcolmson,  8  Ir.  L.  R.  418. 

2  Ashley  v.  Harrison,  1  Esp.  48  ;  Peake,  2.")6  ;  Ingram  v.  Lawson,  6  Bing.  N.  C. 
212 ;  8  Scott,  471  ;  4  Jur.  151;  9  C.  &  P.  326  ;  Harrison  v.  Pearce,  1  F.  &  F.  569  ;  32 
L.  T.  (Old  S.)  298.  8  8  C.  &  P.  448. 

*  Cook  V.  Field,  3  Esp.  133;  Evans  v.  Hames,  1  H.  &  X.  251;  26  L.  J.  Ex.  31. 
5  See  ante,  pp.  313-317. 

285 


*  319  DAIMAGES. 

But  where  it  is  clear  that  the  action  lies,  and  that  the  jury  must 
find  damages  to  some  amount  for  the  phxintiff,  evidence  as  to  the 
nature  and  extent  of  plaintiff's  business  before  and  after  publica- 
tion is  necessary  to  enable  the  jury  to  fix  the  amount  of  damages. 

*  320  *  Illustrations. 

Where  the  defendant  published  in  a  newspaper  that  a  certain  ship  of  the  plaintifTs 
was  uuseaworthy,  and  had  been  purchased  by  the  Jews  to  carry  convicts,  evidence  as  to 
the  average  profits  of  a  voyage  was  admitted,  and  also  evidence  that  upon  the  first  voy- 
age after  the  libel  appeared  the  profits  were  nearly  £1500  below  the  average,  and  this 
although  the  action  was  brought  immediately  after  the  libel  appeared  and  before  the 
last-mentioned  voyage  was  commenced.  The  jury,  however,  awarded  the  plaintiff  only 
£900  damages.  Ingram  v.  Lawson,  6  Bing.  N.  C.  212  ;  8  Scott,  471  ;  Goslin  v. 
Corry,  7  M.  &  Gr.  342  ;  8  Scott,  N.  R.  21. 

Where  a  declaration  alleged  that  the  defendant  spoke  words  of  the  plaintiff,  a  dis- 
senting minister,  in  the  way  of  his  oflice  and  profession,  and  his  congregation  rapidly 
diminished,  and  he  was  compelled  for  a  time  to  give  up  preaching  altogether,  and  lost 
profits  thereby  ;  it  was  held  that  this  was  a  sufiicient  allegation  of  special  damage,  al- 
though the  members  of  his  congregation  were  not  named.  Hartley  v.  Herring,  8  T.  R. 
ISO^Hopwood  V.  Thorn,  8  C.  B.  293;  19  L.  J.  C.  P.  94  ;  14  Jur.  87. 

Where  words  actionable  per  se  are  spoken  of  an  innkeeper  in  the  way  of  his  trade, 
evidence  may  be  given  of  a  general  loss  of  custom  and  decline  in  his  business.  Evans 
V.  Harries,  1  H.  &  N.  251  ;  26  L.  J.  Ex.  31. 

"Suppose  a  biscuit  baker  in  Regent  Street  is  slandered  by  a  man  saying  his  biscuits 
are  poisoned,  and  in  consequence  no  one  enters  his  shop.  He  cannot  complain  of  the 
loss  of  any  particular  customers,  for  he  does  not  know  them,  and  how  hard  and  unjust 
it  would  be  if  he  could  not  prove  the  fact  of  the  loss  under  a  general  allegation  of  loss 
of  custom."  Per  Martin,  B.,  in  Evans  v.  Harries,  26  L.  J.  Ex.  32.  And  see  Weiss  v. 
Whittemore,  38  Michigan,  366. 

Where  the  words  are  actionable  without  special  damage,  the 
jury  must  assess  the  damages  once  for  all :  for  no  fresh  action  can 
be  brought  should  fresh  damage  follow.  They  should  therefore 
take  into  consideration  not  only  the  damage  that  has  accrued, 
but  also  such  damage,  if  any,  as  will  arise  from  the  defendant's 
defamatory  words  in  the  future.* 

*  321  *  VI.    Rejioteness  of  Damages. 

The  special  damage  alleged  must  be  the  natural  and  probable 
result  of  the  defendant's  wrongful  conduct.  In  some  cases  it  can 
be  shown  that  the  defendant  contemplated  and  desired  such  re- 

1  Fitter  v.  Veal,  12  Mod.  542;  B.  N.  P.  7;  Lord  Townshend  v.  Hughes,  2  Mod. 
150  ;  Ingram  v.  Lawson,  6  Bing.  N.  C.  212  ;  8  Scott,  471  ;  4  Jur.  151  ;  9  C.  &  P.  326  ; 
Gregory  and  another  v.  Williams,  1  C.  &  K.  568. 

286 


REMOTENESS.  *  321 

suit  at  the  time  of  publication :  in  other  cases  the  result  is  so 
clearly  the  natural  and  necessary  consequence  of  the  libel  or 
slander  tliat  the  defendant  must  fairly  be  taken  to  have  contem- 
plated it,  whether  in  fact  he  did  so  or  not.  But  where  the  dam- 
age sustained  by  the  plaintiff  is  neither  the  necessary  and  reasonable 
result  of  the  defendant's  conduct,  nor  such  as  can  be  shown  to 
have  been  in  the  defendant's  contemplation  at  the  time,  there 
the  damage  will  be  held  too  remote,  (a)  Evidence  cannot  be 
given  at  the  trial  of  any  special  damage  unless  it  either  flows 
from  defendant's  words  in  the  ordinary  course  of  things,  or 
through  special  circumstances  known  to  the  defendant  may  be 
supposed  to  have  been  in  his  contemplation  at  the  date  of  pub- 
lication. 

The  special  damage  must  be  the  direct  result  of  the  defend- 
ant's words.  The  jury  may  not  take  into  their  consideration  any 
damage  which  is  produced  partly  by  the  defendant's  words  and 
partly  by  some  other  fact  or  circumstance  unconnected  with  the 
defendant.  The  defendant's  words  must  at  all  events  be  the  pre- 
dominating cause  of  the  damage  assigned. 

Illustrations. 

The  defendant  slandered  the  plaintiff  to  his  master  B.  Subsequently  B.  dis- 
covered from  another  source  that  the  plaintiff's  former  master  had  *  dismissed  *  322 
him  for  misconduct.  Thereupon  B.  discharged  the  plaintiff  in  the  middle  of 
the  term  for  which  he  had  engaged  his  services.  Held  that  no  action  lay  against  the 
defendant ;  for  his  words  alone  had  not  caused  B.  to  dismiss  the  plaintiff.  Vicars  v. 
Wilcox,  8  East,  1;  2  Sm.  L.  C.  553  (8th  ed.).  As  explained  in  Lynch  v.  Knight  and 
wife,  9  H.  L.  C.  590,  600. 

The  plaintiff  alleged  that  certain  persons  would  have  recommended  him  to  X.,  Y., 
&  Z.,  had  not  the  defendant  spoken  certain  defamatory  words  of  him  on  the  Royal  Ex- 
change, and  that  X.,  Y.,  &  Z.  would,  on  the  recommendation  of  those  persons,  have 
taken  the  plaintiff  into  their  employment.  The  plaintiff  claimed  damages  for  the  loss 
of  the  employment.  Such  damage  was  held  too  remote,  for  it  was  caused  by  the  non- 
recommendation,  not  by  the  defendant's  words.  Sterry  v.  Foreman,  2  C.  &  P.  592. 
And  see  Hoey  v.  Felton,  11  C.  B.  N.  S.  142;  31  L.  J.  0.  P.  105. 

In  an  action  of  slander  of  title  to  a  patent,  the  plaintiff  alleged  as  special  damage 
that  in  consequence  of  defendant's  opposition,  the  Solicitor-General  refused  to  allow 
the  letters-patent  to  be  granted  with  an  amended  title,  as  the  plaintiff  desired.  Held 
that  this  damage  was  too  remote,  being  the  act  of  the  Solicitor-General  and  not  of  the 
plaintiff.  Haddon  v.  Lott,  15  C.  B.  411;  24  L.  J.  C.  P.  49;  Kerr  v.  Shedden,  4  C,  & 
P.  528. 

(a)  Secns  of  course  if  the  result  was  ac-  48  N.  Y.  561  ;  Terwilliger  v.  Wands,  17 
tually  intended  or  authorized.  Georgia  v.  N.  Y.  54  ;  Fowlcs  r.  Bowen,  30  N.  Y.  20  ; 
Kepford,  45  Iowa,  48  ;  Ba.ssell  v.  Elmore,     Ward  v.  Weeks,  7  Bing.  211. 

287 


*  322  DAMAGES. 

The  plaintiff  engaged  Mdlle.  Mara  to  sing  at  his  concerts ;  the  defendant  libelled 
Mdlle.  Mara,  who  consequently  refused  to  sing  lest  she  should  be  hissed  and  ill-treated  ; 
the  result  was  that  the  concerts  were  more  thinly  attended  than  they  otherwise  would 
have  been,  whereby  the  plaintiff  lost  money.  Held  that  the  damage  to  the  plaintiff 
was  too  remote  a  consequence  of  defendant's  words  to  sustain  an  action  by  the  plaintiff'. 
It  was,  in  short,  not  so  much  the  result  of  defendant's  words  as  of  Mdlle.  Mara's  timidity 
or  caprice.  Ashley  v.  Harrison,  1  Esp.  48;  Peake,  256.  And  see  Taileton  v.  McGaw- 
ley,  Peake,  270  ;  Taylor  v.  Neri,  1  Esp.  386  ;  Lumley  v.  Gye,  2  E.  &  B.  216. 

The  defendant,  having  had  a  quarrel  in  the  street  with  a  negro  boy,  took  up  a  pick- 
axe and  pursued  him  into  the  plaintiffs  store,  where  the  boy  was  emidoyed.  The  negro 
being  alarmed,  and  not  able  to  escape  rapidly  by  the  back  door,  which  was  shut,  ran 
behind  the  counter  to  save  himself  from  being  struck,  and  in  so  doing  knocked  out  the 
faucet  from  a  cask  of  wine  standing  there,  a  quantity  of  which  ran  out  and  was  wasted. 
The  Supreme  Court  of  the  State  of  New  York  held  that  the  defendant  was  liable  to  the 
plaintiff  for  this  loss  ;  the  damage  in  question  being,  in  their  opinion,  the  direct  and 
natural,  though  not  the  necessary  result  of  the  wrongful  act  of  the  defendant.  Van- 
denburg  v.  Truax,  4  Denio  (N.  Y.),  464 ;  Clark  v.  Chambers,  3  Q.  B.  D.  327  ;  47  L.  J. 
Q.  B.  427  ;  26  W.  R.  613  ;  38  L.  T.  454. 

The  defendant  insinuated  that  the  plaintiff  had  been  guilty  of  the  murder 

*  323     *of  one  Daniel  Dolly  ;    the  plaintiff  thereupon  demanded  that  an  inquest 

should  be  taken  on  Dolly's  bodj%  and  incurred  expense  thereby.  Held  that 
such  expense  was  recoverable  as  special  damage  ;  though  it  was  not  compulsory  on  the 
plaintiff  to  have  an  inquest  held.     Peake  v.  Oldham,  Cowp.  275  ;  2  W.  Bl.  960. 

The  defendant  said  to  Mr.  Knight  of  his  wife  Mrs.  Knight,  "  Jane  is  a  notorious 
liar  ....  she  was  all  but  seduced  by  Dr.  C,  of  Roscommon,  and  I  advise  you,  if  C. 
comes  to  Dublin,  not  to  permit  him  to  enter  your  place  ....  She  is  an  infamous 
wretch,  and  I  am  sorry  that  you  had  the  misfortune  to  marry  her,  and  if  you  had  asked 
my  advice  on  the  subject,  I  would  have  advised  you  not  to  marry  her."  Knight  there- 
upon turned  his  wife  out  of  the  house  and  sent  her  home  to  her  father,  and  refused  to 
live  with  her  any  longer.  Held  that  loss  of  consorliuui  of  the  husband  can  constitute 
special  damage  ;  but  that  in  this  case  the  husband's  conduct  was  not  the  natural  or 
reasonable  consequence  of  defendant's  slander.  Secus,  had  the  words  imputed  actual 
adultery  since  the  marriage.  AUsop  v.  Allsop,  5  H.  &  N.  534  ;  29  L.  J.  Ex.  31.5  ; 
6  Jur.  N.  S.  433  ;  8  W.  R.  449;  36  L.  T.  (Old  S.)  290.  Affimied  in  Lynch  ■;;.  Knight 
and  wife,  9  H.  L.  C.  577  ;  Parkins  et  ux.  v.  Scott  ct  ux.,  1  H.  &  C.  153  ;  31  L.  J.  Ex. 
331  ;  8  Jur.  N.  S.  593  ;  10  W.  R.  562  ;  6  L.  T.  394,  jwst,  p.  330.  {a) 

A  declaration  alleged  that  the  defendant  falsely  and  maliciously  spoke  of  the  plain- 
tiff, a  working  stonemason,  "He  was  the  ringleader  of  the  nine  hours'  S3'stem,"  and 
•' He  has  ruined  the  town  by  bringing  about  the  nine  hours'  system,"  and  "He  has 
stopped  several  good  jobs  from  being  carried  out,  by  being  the  ringleader  of  the  system 
at  Llanelly,"  whereby  the  plaintiff  was  prevented  from  obtaining  employment  in  his 
trade  at  Llanell}'.  Held,  on  demurrer,  that  the  alleged  damage  was  not  the  natural  or 
reasonable  consequence  of  the  speaking  of  such  words,  and  that  the  action  could  not  be 
sustained.  Miller  v.  David,  L.  R.  9  C.  P.  118  ;  43  L.  J.  C.  P.  84  ;  22  W.  R.  332  ;  30 
L.  T.  58. 

Damage  which  has  resulted  to  A.  in  consequence  of  the  de- 
fendant's having  defamed  B.,  is  too  remote  to  constitute  special 

(a)  Georgia  v.  Kepford,  45  Iowa,  48.  Secus,  if  the  charge  was  made  for  the  pur- 
pose of  effecting  the  result.     Ih. ;  note  (a),  p.  321. 

288 


EEMOTENESS.  *  323 

damage  in  any  action  brought  by  B.  Whether  A.,  -who  has  him- 
self suffered  the  damage,  can  sue,  depends  upon  the  closeness  of 
the  relationship  between  A.  and  B.  If  A.  is  B.'s  master,  A.  may 
have  an  action  on  the  case  jier  quod  servitium  amisit.  If  A.  is  B.'s 
husband,  then  it  is  clear  law,  that  the  husband  may  sue  for  any 
special  damage  which  has  accrued  to  him  through  the  def- 
amation of  his  wife.  But  a  wife  cannot  *  recover  for  any  *  324 
special  damage  which  words  spoken  of  her  have  inflicted 
on  her  husband.^ 

This  rule  presses  very  harshly  upon  married  women;  for  before  the 
MaiTied  Women's  Property  Act  there  was  hardly  any  special  damage  which 
they  could  suffer.  Their  earnings  were  their  husband's ;  so  was  their  time. 
Lord  Wensleydale,  in  Lynch  v.  Knight  &  wife,^  even  doubted  if  loss  of 
consortium  of  her  husband  was  such  special  damage  as  would  sustain  an 
action  of  slander  by  a  wife.  Loss  of  the  society  of  her  friends  and  neigh- 
bors clearly  is  not.  The  only  special  damage  in  fact  which  a  married  woman 
could  set  up  was  loss  of  hospitality.  And  even  in  conceding  her  this,  the 
judges  seemed  to  be  straining  the  law,  for  her  husband  Avas  bound  to  main- 
tain her  :  so  that  such  gratuitous  entertainment  was  really  a  saving  to  the 
husband's  pocket.  But  in  Davies  v.  Solomon,^  the  judges  declined  to 
scrutinize  too  nicely  into  such  matters  :  and  no  doubt  the  loss  is  really  the 
wife's.  Her  friends  would  supply  her  with  better  and  other  food  than  that 
which  the  law  compels  her  husband  to  afford  her.  The  operation  of  the 
Married  Women's  Property  Acts,  1870  and  1874,  may  lessen  the  hardship. 
In  some  cases  the  difficulty  might  perhaps  have  been  obviated,  had  the 
husband  sued  alone. 

Illustrations. 

If  one  partner  be  libelled  he  cannot  recover  for  any  special  damage  which  has  oc- 
curred to  the  firm.  Solomons  &  others  v.  Medex,  1  Stark.  191  ;  Kobiuson  v.  Marchant, 
7  Q.  B.  918  ;  15  L.  J.  Q.  B.  134  ;  10  Jur.  156. 

Similarly,  if  the  finn  be  libelled  as  a  body,  they  cannot  jointly  recover  for  any  private 
injury  to  a  single  partner :  though  that  partner  may  now  recover  his  individual  damages 
in  the  same  action.  Haythom  v.  Lawson,  3  C.  &  P.  196  ;  Le  Fanu  v.  Malcolmson, 
1  H.  L.  C.  637  ;  8  Ir.  L.  R.  418  ;  13  L.  T.  61. 

Where  the  libel  imputed  that  the  plaintiff,  a  married  man,  kept  a  gaming-house, 
and  that  his  wife  was  a  woman  of  notoriously  bad  character,  and  his  wife  suf- 
fered greatly  in  her  mind  in  consequence  and  became  ill  and  died,  *  evidence         oLO 
of  such  damage  was  excluded  in  an  action  brought  by  the  surviving  husband. 
Guy  V.  Giegory,  9  C.  &  P.  584.     And  see  Wilson  v.  Goit,  3  Smith  (17  N.  Y.  R.),  445, 
ante,  p.  313. 

1  Harwood  et  xix.  v.  Hardwick  ct  ux.  (1668),  2  Keblc,  387.        »  9  H.  L.  C.  597. 
3  L.  R.  7  Q.  B.  112  ;  41  L.  J.  Q.  B.  10  ;  20  W.  R.  167  ;  25  L.  T.  799. 

19  289 


*  325  DAMAGES. 

Where  words  actionable  ;)cr  se  wore  spoken  of  a  married  woman,  she  was  allowed  to 
recover  only  20s.  damages ;  all  the  special  damage  which  she  proved  at  the  trial  was 
held  to  have  accrued  to  her  husband,  and  not  to  her  :  he  ought,  therefore,  to  have  sued 
for  it  in  a  separate  action  (or  count  since  the  C.  L.  P.  Act,  1852  ;  15  &  16  Vict.  c.  70, 
s.  40  ;  Jud.  Act,  1875,  Order  XVll.  r.  4).  Dengate  v.  Gardiner,  4  M.  &  W.  5  ;  2  Jur. 
470. 

A  declaration  by  husband  and  wife  alleged' that  the  defendant  falsely  and  maliciously 
spoke  certain  words  of  the  wife  imputing  incontinence  to  her,  whereby  she  lost  the  so- 
ciety of  her  neighbors,  and  became  ill  and  unable  to  attend  to  her  necessary  affairs  and 
business,  and  her  husband  incuned  expense  in  curing  her,  and  lost  the  society  and 
assistance  of  his  wife  and  his  domestic  affairs.  Held  that  the  declaration  disclosed  no 
cause  of  action.  Allsop  and  wife  v.  Allsop,  5  H.  &  N.  534  ;  29  L.  J.  Ex.  315  ;  6  Jur, 
N.  S.  433  ;  8  W.  K.  449  ;  36  L.  T.  (Old  S.)  290.  Approved  in  Lynch  v.  Knight  and 
wife,  9  H.  L.  C.  577. 

[N.  B.  —  The  excommunication  case  Barnabas  v.  Traunter,  1  Yin.  Abr.  396  ;  ante, 
p.  59,  was  not  cited  to  the  court  in  this  case.] 

Where  words  were  spoken  imputing  unchastity  to  a  woman,  and  by  reason  thereof 
she  was  excluded  from  a  private  society  and  congregation  of  a  sect  of  Calvinistic 
Methodists,  of  which  she  had  been  a  member,  and  was  prevented  from  obtaining  a  cer- 
tificate without  which  she  could  not  become  a  member  of  any  other  society  of  tlie  same 
nature,  —  Held  that  such  a  result  was  not  such  special  damage  as  would  render  the 
words  actionable.  Roberts  and  wife  v.  Roberts,  5  B.  &  S.  384  ;  33  L.  J.  Q.  B.  249  ; 
12  W.  R.  909  ;  10  L.  T.  602  ;  10  Jur.  N.  S.  1027. 

The  act  of  a  third  party,  if  caused  by  the  defendant's  language, 
is  not  too  remote  ;  and  this,  whether  such  act  be  in  itself  a  ground 
of  action  b}''  the  plaintiff  against  such  third  party  or  not.  But 
of  course  the  act  of  the  third  party  must  be  the  result  of  the  de- 
fendant's words  and  such  a  result  as  the  defendant  either  did  con- 
template or  ought  to  have  contemplated.  The  defendant  cannot 
be  held  liable  for  any  eccentric  or  foolish  conduct  on  the  part  of 
the  person  he  addressed  ;  but  only  for  the  ordinary  and  reason- 
able consequences  of  his  words. 

*  326        *  Formerly  this  was  much  doubted  ;  it  was  held,  in  Yicars  v.  Wil- 

cox,^ that  where  the  plaintiff's  master  was  induced  by  the  slander 
to  dismiss  the  plaintiff  from  his  employ,  before  the  end  of  the  term  for 
which  they  had  contracted,  such  dismissal  was  too  remote  to  be  special 
damage ;  because  it  was  a  mere  wrongful  act  of  the  master,  for  which 
the  plaintifi'  could  sue  him.  The  same  doctrine  was  laid  down  in  Morris  v. 
Langdale,^  and  Kelly  v.  Partington.^  But  this  case  is  clearly  contrary  to 
Davis  V.  Gardiner,*  and  the  numerous  other  cases  in  which  loss  of  a  marriage 
was  held  to  constitute  special  damage,  although  the  plaintiff  there  had  au 

1  8  East  1;  2  Sm.  L.  C.  553  (8th  edition). 

2  2  B.  &  P.  284.  «  5  B.  &  Ad.  645;  3  N.  &  M.  116. 
*  4  Rep.  16,  ante,  p.  310. 

290 


ACT   OF  A   THIED   PARTY.  *  326 

action  for  breach  of  promise  of  marriage.  Doubts  were  thrown  on  Vicars 
V.  Wilcox,  in  Knight  v.  Gibbs,^  and  in  Green  v.  Button,'^  and  it  must  now 
be  taken  to  have  been  overruled  by  the  dicia  of  the  Law  Lords  in  Lynch 
V.  Knight  and  wife,*  and  by  the  decision  in  Lumley  v.  Gye.*  And  it  is 
now,  I  think,  clear  law  that  the  defendant  is  liable  for  any  illegal  act  which 
it  was  his  obvious  intention,  or  the  natural  result  of  his  words,  to  induce 
another  to  commit.  "  To  make  the  Avords  actionable,  by  reason  of  special 
damage,  the  consequence  must  be  such  as,  taking  human  nature  as  it  is 
with  its  infirmities,  and  having  regard  to  the  relationship  of  the  parties 
concerned,  might  fairly  and  reasonably  have  been  anticipated  and  feared 
would  follow  from  the  speaking  of  the  words."  ^  "  If  the  experience  of 
mankind  must  lead  any  one  to  expect  the  result,  the  defendant  will  be 
answerable  for  it."  ® 

Illustrations. 

If  I  tell  a  master  falsely  that  his  servant  has  robbed  him  and  thereupon  he  instantly 
dismisses  him,  I  must  be  taken  to  have  contemplated  this  as  a  natural  and  probable 
consequence  of  my  act.  But  if  the  master  horsewhips  his  servant  instead  of  dismissing 
him,  this  is  not  the  natural  result  of  my  accusation  ;  I  could  not  be  hekl  liable  for  the 
assault  as  special  damage.  See  per  Williams,  J.,  in  Haddou  v.  Lott,  15  C.  B.  411  ; 
24  L.  J.  C.  P.  50. 

*  '*  Suppose  that  during  the  war  of  1870,  an  Englishman  had  been  pointed  *  327 
out  to  a  Parisian  mob  as  a  German  spy,  and  thrown  by  them  into  the  Seine, 
it  could  not  be  contended  that  one  act  was  iiot  the  natural  and  necessary  consequence 
of  the  other."  Mayne  on  Damages,  3rd  ed.,  by  Lumley  Smith,  p.  426.  And  see  such 
cases  as  Lee  v.  Riley,  18  C.  B.  N.  S,  722  ;  Sneesby  v.  Lancashire  and  Yorkshire  Ey. 
Co.,  L.  E.  9  Q.  B.  263  ;  43  L.  J.  Q.  B.  69  ;  30  L.  T.  492  ;  (and  in  C.  A.)  1  Q.  B.  D. 
42  ;  45  L.  J.  Q.  B.  41  ;  24  W.  E.  99  ;  33  L.  T.  372. 

A  man  may  not  recover  the  same  damages  for  the  same  injury  twice  fiom  two  dif- 
ferent defendants  ;  but  he  may  recover  from  two  different  defendants  damages  propor- 
tioned to  the  injury  each  has  occasioned,  and  clearly  where  words  are  spoken  by  a 
defendant  ivith  the  intent  to  make  a  third  person  break  his  contract  with  the  plaintiff, 
the  fact  that  such  person  did  break  his  contract  with  the  plaintiff  in  consequence  of 
what  the  defendant  said,  may  be  proved  as  special  damage  against  that  defendant. 
Carrol  v.  Falkiuer,  Keiferd  &  Box's  Digest  of  Victoria  Cases,  216. 

It  is  not  essential  that  the  third  person,  whose  act  constitutes  the 
special  damage,  should  believe  the  words  spoken  by  the  defend- 
ant, if  it  is  shown  that  the  words  spoken  did  directly  induce  the 
act.     The  law  is  otherwise  in  America. 

1  1  A.  &  E.  43;  3  N.  &  M.  467.  ^  2  C.  M.  &  E.  707. 

8  9  H.  L.  C.  577.  *  2  E.  &  B.  216. 

5  Per  Lord  Wensleydale  in  Lynch  v.  Knight  and  wife,  9  H.  L.  C.  p.  600. 

6  Per  Littledale,  J.,  in  R.  v.  Moore,  3  B.  &  Ad.  188. 

291 


527  DAMAGES. 


Illustrations. 

The  plaintifT  and  another  young  woman  worked  for  Mrs.  Enoch,  a  strawbonnet- 
maker,  and  lived  in  her  house.  Mrs.  Enoch's  hmdlord,  who  lived  two  doors  off,  came 
to  Mrs.  Enoch  and  complained  that  the  plaintiff  and  her  fellow-lodger  had  made  a  great 
noise  and  been  guilty  of  openly  outrageous  conduct.  Mrs.  Enoch  thereupon  dismissed 
them  from  her  employ,  not  because  she  believed  the  charge  made,  but  because  she  was 
afraid  it  would  offend  her  landlord  if  they  remained.  Held  that  the  special  damage 
was  the  direct  consequence  of  the  defendant's  word.  Knight  v.  Gibbs,  1  A.  &  E.  43  ; 
3  N.  &  M.  467.     And  see  Gillett  v.  Bullivant,  7  L.  T.  (Old  S.)  490,  x>ost  p.  332. 

But  where  the  plaintiff  was  under  twenty-one  and  lived  at  home  with  her  father, 
and  the  defendant  foully  slandered  her  to  her  father,  in  consequence  of  which  he  refused 
to  give  her  a  silk  dress  and  a  course  of  music  lessons  on  the  piano  which  he  had  prom- 
ised her,  although  he  entirely  disbelieved  the  defendant's  story,  this  was  held  in 
America  not  to  be  such  special  damage  as  will  sustain  the  action,  on  the  ground  that 
such  treatment  by  a  parent  of  his  child  is  not  the  natural  result  of  a  falsehood  told  him 
against  her.  Per  Grover,  J. :  "  I  do  not  think  special  damage  can  be  predicated  upon 
the  act  of  any  one  who  wholly  disbelieves  the  truth  of  the  story.  It  is  inducing  acts 
injurious  to  the  plaintiff,  caused  by  a  belief  of  the  truth  of  the  charge 
*  328  *made  by  the  defendant,  that  constitutes  the  damage  which  the  law  re- 
dresses."    Anon.,  60  N.  Y.  262.     And  see  Wilson  v.  Goit,  17  N.  Y.  445. 

But  where  the  wrongful  act  of  the  third  person  is  voluntary 
and  spontaneous,  there,  as  a  rule,  he  alone  is  liable  for  it.  This 
is  especially  the  ease  where  A.  tells  a  falsehood  against  the  plain- 
tiff to  B.,  which  B.  repeats,  and  from  B.'s  repetition  special  dam- 
age flows ;  here  the  plaintiff  cannot  recover  for  such  special 
damage  from  A.;  and  indeed  if  the  words  be  not  actionable  per 
se,  he  cannot  sue  A.  at  all :  his  only  action  is  against  B.  For  B, 
acted  consciously  and  voluntarily ;  the  repetition  is  his  own 
unlawful  act ;  for  the  consequences  of  Avhich  he  alone  is  an- 
swerable. By  repeating  A.'s  words,  B.  became  an  independent 
slanderer,  (a) 

The  law  is  not  quite  so  restricted  in  cases  of  libel ;  every  one 
in  any  way  concerned  in  the  publication  of  a  libel  is  equally 
responsible  for  all  the  damages  which  flow  from  that  publication. 
Thus,  if  I  write  you  a  private  letter  containing  a  libel  on  A.,  and 
you  show  the  letter  to  various  persons,  one  of  whom  acts  on  it  to 
A.'s  prejudice,  we  both  are  liable  to  an  action  ;  for  I  set  the  libel 
in  circulation.  But  if,  instead  of  merely  showing  my  letter,  you 
make  a  copy  of  it  and  send  it  to  a  newspaper  to  be  published  to 
all  the  world,  without  my  leave,  and  in  a  way  which  I  could  not 

(a)  Terwilliger  v.  Wands,  17  N.  Y.  54  ;     wood,  45  Iowa,  640.     Sec  Gough  v.  Gold- 
Stevens  i;.  Hartwell,  11  Met.  542;  Hastings     smith,  44  Wis.  262. 
i.  Stetson,  126  Mass.  329  ;  Prime  v.  East- 

292 


EEPETITION. 


*  ?>•-){ 


have  anticipated,  then  this  republication  is  your  own  unlawful 
act,  for  the  consequences  of  which  you  alone  are  li;ible.  ^Secus 
if  I  either  requested  or  expected  and  intended  you  to  publish  it.^ 

Thus,  it  may  happen  that  a  person  who  invents  a  lie  and  maliciously 
sets  it  in  circulation,  may  sometimes  escape  punishment  altogether, 
wliile  a  person  who  is  merely  injudicious  may  *  be  liable  to  an  *  329 
action  through  incautiously  repeating  a  story  which  he  believed  to 
be  the  truth,  as  he  heard  it  told  fret^uently  in  good  society.  For  if  I 
originate  a  slander  against  you  of  such  a  nature  that  the  words  are  not 
actionable  per  se,  the  utterance  of  them  is  no  ground  of  action,  unless 
special  damage  follows.  If  I  myself  tell  the  story  to  your  employer,  who 
thereupon  dismisses  you,  you  have  an  action  against  me ;  but  if  I  only  tell 
it  to  your  friends  and  relations,  and  no  pecuniary  damage  ensues  from  my 
own  communication  of  it  to  any  one,  then  no  action  lies  against  me, 
although  the  story  is  sure  to  get  round  to  your  master  sooner  or  later. 

The  unfortunate  man  whose  lips  actually  utter  the  slander  to  your  mas- 
ter is  the  only  person  that  can  be  made  defendant ;  for  it  is  his  publication 
alone  which  is  actionable  as  causing  special  damage. 

As  to  this  state  of  the  law,  see  the  remarks  of  Kelly,  C.B.,  in  Fading  v. 
Smith,^  who  ditfered  from  Pollock  and  Huddleston,  B.B.,  in  denouncing 
the  decision  in  Ward  v.  Weeks,^  which  they  maintained. 

It  might,  perhaps,  have  been  argued  formerly,  in  analogy  to  the  princi- 
ple of  Scott  V.  Shepherd,^  that  he  who  invented  the  slander  and  first  set  it 
in  circulation,  is  as  liable  as  he  who  ''gave  the  mischievous  faculty  to  the 
squib  "  and  first  started  it  on  its  wild  career  across  the  market-house  at 
Milborne  Fort.  But  it  will  be  renjembered  that  the  decision  in  that 
famous  case  turns  expressly  on  the  assumption  that  AVillis  and  Fyal  were 
7iot  to  be  considered  free  agents,  that  what  they  did  was  "  by  necessity," 
was  "  the  inevitable  consequence  of  the  defendant's  unlawful  act."  Had 
they  been  considered  as  free  agents  voluntarily  intervening,  the  other 
judges  would  have  agreed  with  Blackstone,  J,  On  principle,  therefore,  it 
is  clearly  good  law  to  hold  that  when  the  repetition  of  the  slander  is  spon- 
taneous and  unauthorized,  when  it  is  the  voluntary  act  of  a  free  agent,  the 
originator  of  the  slander  is  not  answerable  for  any  mischief  caused  by  such 
repetition  :  and  this  principle  is  also  far  too  strongly  established  by 
authority  to  be  easily,  if  ever,  shaken.^  *  It  is  only  in  cases  where  *  330 
the  words  are  not  actionable  ^er  se,  that  the  rule  as  to  the  remote- 

1  See  post,  pp.  360-365. 

2  1  Ex.  D.  94  ;  45  L.  J.  Ex.  281  ;  24  W.  R.  487  ;  34  L.  T.  500. 

3  7  Bing.  211  ;  4  M.  &  P.  796. 

«  1  Sm.  L.  Cases  (8th  ed.),  466  ;  2  Wm.  Bl.  892  ;  3  Wils.  403. 
6  See  Ward  v.  Weeks,  7  Bing.  211  ;  Rutherford  v.   Evans,   4  C.  &  P.  79  ;  Tunni- 

293 


*  330  DAMAGES. 

ness  of  damages  inflicts  this  apparent  hardsliip  upon  the  plaintiff;  for 
where  the  words  are  actionable  j)er  se,  and  in  all  cases  of  libel,  the  jury 
find  the  damages  generally,  and  will  be  careful  to  punish  the  author  of  a 
pernicious  falsehood  with  all  due  severity  ;  although,  of  course,  the  judge 
will  still  direct  them  not  to  take  into  their  consideration  any  damage 
which  ensued  from  a  repetition  by  a  stranger.-' 

Illustrations. 

Weeks  was  speaking  to  Bryce  of  the  plaintiff,  and  said,  "  He  is  a  rogiie  and  a 
swindler  ;  1  know  enough  about  him  to  hang  him."  Bryce  rei)eated  this  to  Bryer  as 
Weeks'  statement.  Bryer  consequently  refused  to  trust  the  plaintiff.  Held  that  the 
judge  was  right  in  nonsuiting  the  plaintiff :  for  the  words  were  not  actionable  ^jcr  se, 
and  the  damage  was  too  remote.  Ward  v.  Weeks,  7  Bing.  211  j  4  M.  &  P.  796  ; 
Hirst  V.  Gooilwin,  3  F.  &  F.  257. 

A  groom  in  a  passion  called  a  lady's-maid  "a  whore."  A  lady,  hearing  the  groom 
had  said  so,  refused  to  afford  the  lady's-maid  her  customary  hospitality.  Held  that  no 
action  lay,  for  the  groom  had  never  spoken  to  the  lady.  Clarke  v.  Morgan,  38  L.  T. 
354  ;  Dixon  v.  Smith,  5  H.  &  N.  450  ;  29  L.  J.  Ex.  125,  ante,  p.  316. 

The  defendant's  wife  charged  Mrs.  Parkins  with  adultery.  She  indignantly  told 
her  husband,  and  he  was  unreasonable  enough  to  insist  upon  a  separation  in  conse- 
quence. Held  that  the  defendant  was  not  liable.  Parkins  et  ux.  v.  Soott  et  ux.,  1  H. 
&  C.  153  ;  31  L.  J.  Ex.  331  ;  8  Jur.  N.  S.  593  ;  10  W.  Pt.  562  ;  6  L.  T.  394. 

Bingham  caused  a  libel  on  plaintiff,  the  proprietor  of  a  newspaper,  to  be  printed  by 
Hinchcliffe  as  a  placard,  and  distributed  5000  such  placards.  He  also  put  the  same 
libel  into  a  rival  newspaper,  the  defendant's,  as  an  advertisement.  Plaintiff  sued  both 
Bin<^ham  and  Hinchcliffe  as  well  as  the  defendant,  alleging  that  the  cii'culation  of  his 
paper  had  greatly  declined.  The  action  against  the  defendant  came  on  first,  and  his 
counsel,  havin^  failed  to  prove  the  justification  pleaded,  contended  that  the 

*  331     decline  of  *  circulation  must  principally  be  ascribed  to  the  5000  placards,  not 

to  the  advertisement.  Martin,  B.,  while  admitting  that  defendant  was  not 
liable  for  damage  caused  by  the  placards,  ruled  that  it  lay  on  defendant  to  prove  that 
the  damao-e  sustained  by  the  plaintiff  was  in  fact  due  to  the  placard,  and  not  to  the 
advertisement.  Verdict  for  the  plaintiff,  500^.  In  the  action  against  Bingham  and 
Hinchcliffe  plaintiff  recovered  only  40s.  The  500/.  was  probably  due  to  the  justifica- 
tion jileaded  and  not  proved.  Harrison  v.  Pearce,  1  F.  &  F.  567 ;  32  L.  T. 
(OldS.)  298. 

But  thi.s  rule,  that  the  originator  of  a  slander,  not  actionable 
per  se,  is  not  liable  for  damage  caused  by  its  repetition,  cannot 
of  course  override  the  general  principle  that  every  man  will  be 

cliffe  V.  Moss,  3  C.  &  K.  83  ;  Parkins  et  rix.  v.  Scott  et  ux.,  1  H.  &  C.  153  ;  31  L.  J. 
E.x.  331  ;  8  Jur.  N.  S.  593  ;  Dixon  v.  Smith,  5  H.  &N.  450  ;  29  L.  J.  Ex.  125  ;  Bate- 
man  V.  Lyall,  7  C.  B.  N.  S.  638  ;  Clarke  v.  Morgan,  38  L.  T.  354,  in  which  last  case 
Lindley,  J.,  expressly  states  his  opinion  that  the  decisions  in  Ward  v.  Weeks  and 
Parkins  v.  Scott  have  been  in  no  way  overruled  by  Pading  v.  Smith  and  Evans  v.  Har- 
ries, 26  L.  J.  Ex.  31  ;  1  H.  &  N.  254. 

1  Rutherford  v.  Evans  (1829),  4  C.  &  P.  79  ;  Tunnicliffe  v.  Moss,  3  C.  &  K.  83. 

294 


BEPETITION.  *  331 

liable  for  the  natural  and  necessary  consequences  of  his  act. 
And  it  may  well  be  that  the  repetition  of  a  slander  may  be  the 
natural  and  necessary  consequence  of  defendant's  original  publi- 
cation. It  clearly  is  so  whenever  the  original  communication 
made  to  A.,  places  A.  under  a  moral  obligation  to  repeat  the 
slander  to  B.  And,  indeed,  if  defendant  knew  the  relation  in 
which  A.  stood  to  B.,  he  will  be  taken  to  have  maliciously  con- 
templated and  desired  this  result  when  he  spoke  to  A.  So,  again, 
whenever  the  first  publisher  either  expressly  or  implicitly  re- 
quested or  procured  the  repetition  ;  then  he  will  of  course  be 
liable  for  all  the  mischief  caused  by  the  act  of  his  agent,  and  the 
agent  would  be  liable  also. 

In  America  the  judges  in  one  or  two  cases  appear  to  carry  this  doctrine 
further,  and  seem  to  lay  down  the  rule  that  wherever  the  repetition  is 
miiocent  (that  is,  I  presume,  not  malicious,  and  on  a  privileged  occasion), 
the  originator  must  be  liable  for  aU  consequential  damage  caused  by  the 
repetition  ;  for  else,  it  is  said,  the  person  injured  would  be  Avithout  a 
remedy.  He  cannot  sue  the  person  repeating  the  slander,  as  the  repetition 
is  privileged  ;  therefore  he  mzist  be  able  to  sue  the  first  publisher  for  the 
damage  caused  by  his  own  publication,  and  by  the  innocent  repetition  as 
well,  (a)  "  Where  slanderous  words  are  repeated  innocentlt/  and  without 
an  intent  to  defiuue,  as  under  some  circumstances  they  may  be, 
I  do  not  see  why  the  *  author  of  the  slander  should  not  be  held  *  332 
liable  for  injuries  resulting  from  it  as  thus  repeated,  as  he  would 
be  if  these  injuries  had  arisen  directly  from  the  words  as  spoken  by  him- 
self." ^  But  this  is  not  the  law  of  England,  at  all  events  ;  it  by  no  means 
follows  that  because  the  repetition  is  privileged  or  innocent,  that  it  is 
therefore  the  natural  and  necessary  consequence  of  the  prior  publication. 
In  Parkins  v,  Scott  the  repetition  was  clearly  innocent ;  yet  no  action  lay 
against  the  original  defamer.  Mrs.  Parkins  was  in  fact  held  to  have  no 
remedy.  So  also  in  Holwood  v.  Hopkins,^  the  communication  would  prob- 
ably in  the  present  day  be  deemed  privileged. 

1  Per  Beardsley,  J.,  in  Keenholts  v.  Becker,  3  Denio  N.Y.  352,  and  see  Terwilliger 
V.  Wands,  17  N.  Y.  58.  ^  Cro.  Eliz.  787. 

(a)  It  is  impossible  to  sustain  this  view  thcrpfore  was  authorized  by  the  defendant 
on  principle.  A  man  is  liable  only  for  the  or  when  he  presumably  intended  it  he  will 
damage  which  he  has  caused,  except  in  be  liable  for  it ;  otherwise  not.  Whether 
certain  cases  of  agency  (when  the  princi-  the  plaintiff  must  trace  the  defamation  to 
pal  may  have  been  entirely  innocent)  and  the  hearing  of  the  person  who  acted  upon 
in  certain  extraordinary  situations.  In  it  to  his  (the  plaintiffs)  damage,  see  Keen- 
contemplation  of  law  a  man  does  not  cause  holts  v.  Becker,  3  Denio,  346.  But  see 
damage  unless  he  actually  intended  it  or  Bassell  v.  Elmore,  48  N.  Y.  561,  567  ; 
unless  his  act  had  an  obvious  tendency  to  Titus  v.  Sumner,  44  N.  Y.  266. 
produce  the  result.     When  the  repetition 

Zoo 


*  332  da:mages. 


Illustrations. 


The  plaintiff  was  governess  to  Mr.  L.'s  children  ;  the  defendant  told  her  father  that 
she  had  had  a  child  by  Mr.  L.  :  the  father  went  straight  to  Mr.  L.  and  told  him  what 
defendant  had  said.  Mr.  L.  thereupon  said  that  the  plaintiff  had  better  not  return  to 
her  duties,  for  although  he  knew  that  the  charge  was  perfectly  false,  still  for  her  to 
contiuue  to  attend  to  his  children,  would  be  injurious  to  her  character  and  unpleasant 
to  them  both.  Held  that  the  repetition  by  the  father  to  Mr.  L.,  and  his  dismissal  of 
the  plaintiff,  were  both  the  natural  conseciuences  of  the  defendant's  publication  to  the 
father.    Gillett  v.  Bullivant,  7  L.  T.  (Old  S.)  490  ;  Fowles  v.  Boweu,  3  Tiff.  (30  N.  Y.)  20. 

A  police  magistrate  dismissed  a  trumped-up  charge  brought  by  the  plaintiff,  a 
policeman,  and  added  :  "  I  am  bound  to  say,  in  reference  to  this  charge  and  a  similar 
one  brought  from  the  same  spot  a  few  days  ago,  that  I  cannot  believe  William  Ken- 
dillou  on  his  oath."  This  observation  was  duly  reported  to  the  Commissioners  of 
Police,  who  in  consequence  dismissed  the  plaintiff  from  the  force.  Lord  Denman  held 
that  the  dismissal  was  special  damage  for  which  the  defendant  would  have  been  liable, 
if  the  action  had  lain  at  all :  for  he  must  have  known  that  such  a  remark  would  cer- 
tainly be  reported  to  the  commissioners,  and  would  most  probably  cause  them  to 
dismiss  the  plaintiff.  Nonsuit  on  the  ground  of  privilege.  Kendillon  v.  Maltby,  1 
Car.  &  Marsh,  402. 

[N.  B.  The  report  of  this  case  in  2  Moo.  &  Rob.  438,  refers  only  to  the  point  of 
privilege.] 

H.  told  Mr.  Watkins  that  the  plaintiff,  his  wife's  dressmaker,  was  a  woman  of  im- 
moral character,     ilr.  Watkins  naturally  informed  his  wife  of  this  charge, 
*  333     and  she  ceased  to  employ  the  plaintiff.     Held  that  the  plaintiff's  *  loss  of 
Mrs.   Watkins'  custom  was  the  natural   and   necessary  consequence  of  the 
defendant's  commimication  to  Mr.  Watkins.     Derry  v.  Handley,  16  L.  T.  263. 

If  the  defendant  makes  an  oral  statement  to  the  reporter  of  a  newspaper,  intending 
and  desiring  him  to  insert  the  substance  of  it  in  the  paper,  he  is  liable  for  all  the  con- 
sequences of  its  appearing  in  print,  although  he  may  not  have  expressly  requested  the 
reporter  to  publish  it.  Bond  v.  Douglas,  7  C.  &  P.  626  ;  R.  v.  Lovett,  9  C.  &  P.  462  ; 
Adams  v.  Kelly,  Rv.  &  Moo.  157  ;  R.  v.  Cooper,  8  Q.  B.  533  ;  15  L.  J.  Q.  B.  206. 
296 


♦CHAPTER  XI.  *334 

COSTS. 

If  an  action  of  slander  or  libel  be  tried  by  a  jury,  the  costs  al- 
ways follow  the  event  unless,  upon  application  made  at  the  trial 
for  good  cause  shown,  the  Judge  before  whom  such  action  is  tried, 
or  the  Court,  shall  otherwise  order.^  If  by  any  chance  such  an 
action  be  tried  by  a  Judge  alone  (which  it  very  seldom  is,  except 
in  the  case  of  trade  libels),^  the  costs  are  absolutely  in  his  discre- 
tion. The  provisions  of  the  County  Courts  Act,  1867,^  no  longer 
apply  to  actions  of  libel  or  slander,  since  s.  67  of  the  Judicature 
Act,  1873,  came  into  operation  :  for  no  action  of  either  slander  or 
libel  can  be  brought  in  the  County  Court,  except  by  consent. 

Formerly  the  provisions  of  the  County  Courts  Act  applied  to  all  actions, 
whether  they  could  be  brought  in  the  County  Court  or  not ;  the  words  of 
the  Act  being  wider  than  the  Legislature  intended.*  Formerly  also  the 
provisions  of  Lord  Denman's  Act  ^  applied  to  actions  of  slander  and 
libel,  and  therefore  a  plaintiff  who  *  recovered  less  than  405.  dam-  *  335 
ages  could  not  recover  any  costs  whatever  from  the  defendant  unless 
the  judge  immediately  certified  on  the  record  that  the  slander  or  libel  was 
wilful  and  malicious.  But  even  if  the  judge  certified  both  that  the  action 
was  one  fit  to  be  tried  in  the  Superior  Court,  and  also  that  the  slander  was 
wilful  and  mahcious,  so  as  to  take  the  case  out  of  both  the  30  &  31  Vict. 
c.  142,  s.  5,  and  the  3  &  4  Vict.  c.  24,  s.  2,  stUl  no  certificate  could  enable 
a  plaintiff  to  get  more  costs  than  damages  if  he  sued  for  a  slander  action- 
able per  se,  and  recovered  less  than  40s.^     For  the  relentless  words  of  the 

1  Order  LV.  r.  1. 

2  Thomas  v.  WiUiams,  14  Ch.  D.  864  ;  49  L.  J.  Ch.  605  ;  28  W.  E.  983  ;  43  L.  T. 
91. 

8  30  &  31  Vict.  c.  142,  s.  5. 

4  Sampson  v.  Mackay,  L.  E.  4  Q.  B.  643  ;  10  B.  &  S.  694  ;  38  L.  J.  Q.  B.  245  ;  17 
W.  E.  883  ;  20  L.  T.  807  ;  Gray  v.  West  et  ux.,  L.  E.  4  Q.  B.  175  ;  9  B.  &  S.  196 ;  38 
L.  J.  Q.  B,  78  ;  17  W.  E.  497  ;  20  L.  T.  221  ;  Craven  v.  Smith,  L.  E.  4  Ex.  146  ; 
38  L.  J.  Ex.  90  ;  17  W.  E.  710  ;  20  L.  T.  400;  Kent  v.  Lewis,  21  W.  E.  413. 

6  3  &  4  Vict.  c.  24,  s.  2. 

6  Evans  v.  Eees,  9  C.  B.  N.  S.  391  ;  30  L.  J.  C.  P.  16  ;  JIarshall  v.  Martin,  L.  R. 
5  Q.  B.  239  ;  39  L.  J.  Q.  B.  85  ;  18  W.  R.  378  ;  21  L.  T.  788. 

297 


*  335  COSTS. 

21  Jac.  I.  c.  16,  contain  no  proviso  enabling  a  judge  to  make  any  exemp- 
tion from  the  imperative  rule  that  a  plaintiff,  suing  on  the  case  for  slander- 
ous words,  and  recovering  less  than  40s.  shall  have  "  only  so  much  costs  as 
the  damages  so  given  or  assessed  amount  unto."  This  statute,  21  Jac.  I. 
c.  1 6,  was  held  to  apply  only  to  words  actionable  per  se,  and  not  to  actions 
of  libel,  of  slander  of  title,  of  scandalum  magnatum,  or  where  the  words 
are  actionable  only  by  reason  of  special  damage  alleged. 

But  both  the  21  Jac.  I.  c.  16  and  the  3  &  4  Vict.  c.  24,  s.  2,  and  all 
special  Acts  relating  to  costs,  are  now  repealed  by  s.  33  of  the  Judicature 
Act,  1875,^  wliile  the  County  Courts  Act,  1867,  is,  by  the  express  words 
of  s.  67  of  the  Judicature  Act  of  1873,  restricted  to  actions  in  which  relief 
can  be  given  in  a  County  Court ;  and  slander  and  libel  are  not  among  such 
actions.^ 

Hence  now,  if  a  plaintiff  recovers  nominal  damages  merely,  he 
will  get  his  costs,  unless  the  Judge  or  a  Divisional  Court  other- 
wise orders.     It  is  therefore  the  duty  of  defendant's  coun- 

*  3£6    sel  at  once  to  apply  for  such  an  *  order,  or  at  least  at  the 

same  sitting  of  the  Court.^  He  cannot  apply  to  that  Judge 
subsequently,  nor  to  a  Judge  at  chambers.*  If  no  application  be 
made  at  the  trial,  the  only  chance  is  to  apply  to  a  Divisional 
Court,  which  has  under  Order  LV.  an  original  jurisdiction  to 
make  an  order  to  deprive  a  successful  plaintiff  of  the  costs  of  an 
action  tried  before  a  jury.^ 

But  such  an  application  must  be  made  within  a  reasonable  time.^  In 
the  three  other  cases  reported  with  Bowey  v.  Bell,  in  the  first.  Brooks  v. 
Israel,  the  plaintiff  was  eventually  allowed  his  costs  on  the  merits  ;  and  so 
in  the  second,  North  v.  Bilton ;  while  in  Siddons  v.  Lawrence  the  plaintiff 
was  eventually  deprived  of  his  costs,  good  cause  being  shown. 

1  Parsons  v.  Tinling,  2  C.  P.  D.  119  ;  46  L.  J.  C.  P.  230  ;  25  W.  R.  255  ;  35 
L.  T.  851  ;  Garnett  v.  Bradley  (C.  A.),  2  Ex.  D.  349  ;  46  L.  J.  Ex.  545  ;  25  W.  R.  653  ; 
36  L.  T.  725  ;  (H.  of  Lds.),  3  App.  Cas.  944  ;  48  L.  J.  Ex.  186  ;  26  W.  R.  698  ;  39 
L.  T.  261  ;  Ex  parte  Mercers'  Company,  10  Ch.  D.  481 ;  48  L.  J.  Ch.  384  ;  27  W.  R. 
424. 

2  County  Courts  Act,  1846  (9  &  10  Vict.  c.  95),  s.  58. 

3  Kynaston  v.  Mackinder,  47  L.  J,  Q.  B.  76 ;  37  L.  T.  390. 

*  Baker  v.  Oakes  (C.  A.),  2  Q.  B.  D.  171  ;  46  L.  J.  246  ;  25  W.  R.  220  ;  35  L.  T. 
832  ;  Tyiie  Alkali  Co.  v.  Lawson,  36  L.  T.  100  ;  W.  N.  1877,  p.  18  ;  Forsdike  and 
wife  V.  Stone,  L.  R.  3  C.  P.  607  ;  37  L.  J.  C.  P.  301  ;  16  W.  R.  976  ;  18  L.  T.  722. 

6  Myers  v.  Defries  ;  Siddons  v.  Lawrence,  4  Ex.  D.  176  ;  48  L.  J.  Ex.  446  ;  27 
W.  R.  791  ;  40  L.  T.  795. 

6  Kvnaston  v.  Mackinder,  47  L.  J.  Q.   B.   76  ;  37  L.  T.  390  ;  Bowey  v.  Bell,  4 
Q.  B.  D.  95  ;  48  L.  J.  Q.  B.  161  ;  27  W.  R.  247  ;  39  L.  T.  608. 
298 


COSTS.  *  336 

The  Judge  or  Divisional  Court  will,  as  a  rule,  only  deprive  a 
plaintiff  of  Lis  costs  where  "  contemptuous  "  damages,  such  as  a 
farthing  or  a  shilling,  are  given.  If  forty  shillings  or  more  be 
given,  the  law  is  generally  allowed  to  take  its  course.  Though 
in  a  recent  case  Huddleston,  B.,  deprived  a  plaintiff  of  his  costs, 
where  the  verdict  was  for  .£10  damages,  and  his  discretion  was 
approved  both  in  the  Exchequer  Division  and  in  the  Court  of 
Appeal.i  But  there  of  course  the  circumstances  were  excep- 
tional. 

*  And  although  the  rule  expressly  requires  that  the  *  337 
Judge  should  only  interfere  as  to  costs,  ''  upon  applica- 
tion made  at  the  trial  for  good  cause  shown,"  it  has  now  been 
decided  that  the  Judge  need  not  wait  for  any  express  application 
to  be  made  to  him,  but  may  make  such  an  order  mero  motu,  if  he 
think  proper ;  ^  provided  both  parties  are  still  present  and  have 
an  opportunity  of  arguing  the  question  at  the  time.^  It  must  be 
assumed  that  "  the  counsel  in  whose  favor  the  order  was  made 
was  ready  to  apply  for  it."  ^ 

Application  for  any  special  costs,  such  as  those  of  shorthand  writer's 
notes,  or  of  a  commission  abroad,  or  of  a  special  jury,  or  of  photographic 
copies  of  the  libel,  should  be  made  when  judgment  is  delivered.  No  order 
will  be  made  as  to  such  costs  after  the  judgment  has  been  drawn  up  ;  they 
must  be  borne  by  the  party  ordering  them.^  To  entertain  such  an  appli- 
cation would  substantially  be  to  rehear  the  cause.® 

I  presume  that  the  word  "judge,"  in  Order  LV.,  r.  1,  includes  the  judge 
of  a  County  Court  to  which  the  case  is  sent  for  trial ;  and  an  under-sherifi" 
executing  a  writ  of  inquiry,  for  they  were  both  included  in  the  word 
"judge  "  in  the  30  &  31  Vict.  c.  142,  s.  bJ  A  master,  to  whom  an  action  is 
referred  with  the  powers  of  a  judge  at  Nisi  Prius,  may.  in  his  award,  make 
any  order  as  to  costs,  not  inconsistent  with  the  terms  of  the  submission." 

1  Harnett  v.  Vise  and  wife  (C.  A.),  5  Ex.  D.  307  ;  29  W.  E.  7. 

2  Turner  v.  Heyland,  4  C.  P.  D.  432  ;  48  L.  J.  C.  P.  535  ;  41  L.  T.  556. 

3  Collins  V.  Welch,  5  C.  P.  D.  27  ;  49  L.  J.  260  ;  28  W.  K.  208  ;  41  L.  T.  785. 
*  But  see  Marsden  and  wife  v.  Lancashire  and  Yorkshire  Ry.  Co.,  42  L.  T.  631. 

6  Ashworth  v.  Outrani,  9  Ch.  D.  483  ;  27  W.  R.  98  ;  39  L.  T.  441  ;  Executors  of 
Sir  Rowland  Hill  v.  Metropolitan  District  Asylum,  49  L.  J.  Q.  B.  668  ;  43  L.  T.  462  ; 
W.  N.  1880,  p.  98  ;  Davey  v.  Pemberton,  11  C.  B.  (N.  S.)  629. 

6  In  re  St.  Nazaire  Co.,  12  Cli.  D.  88  ;  27  W.  R.  854  ;  41  L.  T.  110. 

7  Taylor  v.  Cass,  L.  R.  4  C.  P.  614  ;  17  W.  R.  860  ;  20  L.  T.  667  ;  Craven  v.  Smith, 
L.  R.  4  Ex.  146  ;  38  L.  J.  Ex.  90  ;  17  W.  R.  710  ;  20  L.  T.  400. 

8  Bedwell  v.  Wood,  2  Q.  B.  D.  626  ;  36  L.  T.  213. 

299 


*  338  COSTS. 

*  338    It  is,  however,  usual  in  references  to  give  the  *  arbitrator  power 

over  the  costs  of  the  reference  and  award  only,  leaving  the  costs  of 
the  action  to  follow  the  event.^ 

These  rules  as  to  nominal  damages  earrjdng  costs  apply  to  all 
courts  whatsoever  in  England  and  to  all  actions  of  slander  and 
libel,  wherever  tried,  so  long  as  they  come  before  a  jury.  Thus, 
in  the  Salford  Hundred  Court  of  Record,^  or  in  the  Liverpool 
Court  of  Passage,'*  the  rule  is  the  same  as  in  the  Superior 
Courts. 

And  if  at  the  first  trial  there  was  a  nonsuit  and  a  new  trial 
be  granted,  which  results  in  plaintiffs  favor,  Order  LV.  gives 
him  his  costs  of  both  trials,  if  no  order  be  made  to  the  con- 
trary.* 

But  if  the  Judge  chooses  to  make  an  order,  that  order  is  not 
necessarily  that  each  party  should  pay  his  own  costs.  He  may 
on  very  good  cause  shown,  order  that  the  successful  plaintiff 
should  pay  defendant's  costs ;  and  where  there  has  been  a  non- 
suit, and  a  new  trial,  the  Judge  who  tries  the  case  the  second 
time  may  order  that  the  successful  plaintiff  shall  pay  the  whole 
costs  of  both  trials.^  But  of  course  such  an  order  would  only  be 
made  in  an  extreme  case.^ 

In  Harris  v.  Petherick,'  Bramwell,  L.  J.,  says :  "  If  it  were  pos- 

*  33^    £ible  to  apportion  the  costs  of  the  issues  *  between  the  parties, 

perhaps  it  would  in  some  cases,  especially  in  actions  for  slander 
where  tlie  damages  are  assessed  at  a  farthing,  be  the  most  satisfactory 
manner  of  concluding  a  litigation  in  Avhich,  at  feast  technically,  both  the 
plaintiff  and  the  defendant  are  to  blame."  And  accordingly  it  has  now 
been  decided  that  where  the  plaintiff  joins  four  distinct  causes  of  action  in 
one  suit  {e.g.,  malicious  prosecution,  libel,  slander,  and  trespass),  and  the 
jury  find  for  the  plaintiff  damages  one  farthing  for  the  Hbel,  and  for  the  de- 

1  And  see  Frean  v.  Sargent,  2  H.  &  C.  293  ;  32  L.  J.  Ex.  281  ;  11  W.  R.  808  ; 
8  L.  T.  467. 

2  Turner  v.  Heyland,  4  C.  P.  D.  432 ;  48  L.  J.  C.  P.  535  ;  41  L.  T.  556. 

8  King  V.  Hawkesworth,  4  Q.  B.  D.  371  ;  48  L.  J.  Q.  B.  484  ;  27  W.  R.  660  ;  41 
L.  T.  411. 

*  Creen  v.  Wright,  2  C.  P.  D.  354  ;  46  L.  J.  C.  P.  427  ;  25  W.  R.  502  ;  36  L.  T. 
355  ;  Field  v.  Great  Northern  Ry.  Co.,  3  Ex.  D.  261  ;  26  W.  R.  817  ;  39  L.  T.  80. 

5  Harris  v.  Petherick  (C.  A.),  4  Q.  B.  D.  611 ;  48  L.  J.  521  ;  28  W.  R.  11  ;  41 
L.  T.  146. 

6  See  Norman  v.  Johnson,  29  Beav.  77  ;  Wootton  v.  Wootton,  Weekly  Notes,  1869, 
p.  175.  7  4  Q.  B.  D.  612. 

300 


APPORTIONING   COSTS.  *  339 

fendant  as  to  the  other  causes  of  action,  the  word  "  event "  must  be  read 
distributively,  and  the  defendant  is  entitled  to  tax  his  costs  of  the  issues 
found  for  him,  unless  the  Court  or  a  judge  otherwise  orders.'^  And  by 
analogy  to  these  cases,  it  would  appear  the  right  course  in  some  cases  to 
apportion  tlie  costs  of  the  various  issues  arising  out  of  the  same  cause  of 
action  where  it  is  possible  so  to  do.^  Thus,  if  a  defendant  in  an  action  of 
defamation  both  justified  and  pleaded  privilege,  and  called  at  the  trial  ten 
witnesses  in  support  of  his  plea  of  justification,  all  of  whom  broke  down 
under  cross-examination,  or  were  confuted  by  the  evidence  of  plaintiff's 
witnesses,  and  the  jury  found  that  the  words  were  false,  and  yet  at  the 
same  time  it  appeared  that  the  occasion  of  publication  was  clearly  a  privi- 
leged one,  and  there  was  no  evidence  of  malice,  here  it  would  clearly  be 
right  that  the  plaintiff  should  pay  the  general  costs  of  the  action,  for  he 
ought  never  to  have  brought  it ;  but  that  all  extra  costs  occasioned  by  the 
plea  of  justification  being  placed  on  the  record  should  be  paid  by  the  de- 
fendant.3  As  the  law  now  stands,  the  plaintiff  would  have  to  pay  all  the 
costs  of  the  action,  unless  a  special  order  be  made  to  the  above  effect.  But 
supposing  that  the  judge  at  the  trial  makes  such  an  order,  there  are  im- 
mense practical  difficulties  in  the  way  of  taxation.  It  would  be  difficult 
for  the  master,  who  was  not  at  the  trial,  to  determine  whether  it  was,  or 
was  not,  solely  in  consequence  of  the  plea  of  justification  that  a 
particular  *  witness  was  subpoenaed,  or  a  particular  page  of  the  *  340 
brief  prepared.  The  only  plan  would  be  to  tax  the  costs  of  the  ac- 
tion generally,  and  then  deduct  such  sum  as  the  plaintiff  could  prove  to 
have  been  occasioned  by  the  justification.  This  is  the  plan  adopted  in 
Chancery,  where  a  claim  and  a  counter-claim  are  both  dismissed  with 
costs.'* 

But  even  this  involves  great  additional  trouble,  and  the  masters  generally 
adopt  a  rough  and  ready  method  of  apportionment.  Thus  in  Knight  v. 
Pursell,^  where  the  plaintiff  applied  for  an  injunction  in  respect  of  three 
separate  subjects  of  complaint,  and  was  successful  as  to  one,  unsuccessful 
as  to  the  other  two,  and  a  special  order  was  made,  the  taxing-master  taxed 
the  costs  of  the  action  as  a  wliole,  and  then  divided  them  into  thirds,  allow- 
ing plaintiff  one  third,  and  defendant  two  thirds  of  both  plaintiff"s  and 

1  Myers  v.  Defries,  5  Ex.  D.  15,  180  ;  48  L.  J.  446  ;  49  L.  J.  Ex.  266  ;  28  W.  R, 
253,  406  ;  41  L.  T.  137,  659  ;  Davidson  v.  Gray,  5  Ex.  D.  189,  n. ;  40  L.  T.  192 ; 
(C.  A.)  42  L.  T.  834. 

2  See  James  v.  Brook,  16  L.  J.  Q.  B.  168  ;  Pnulliomnie  v.  Eraser,  2  A.  &  E.  645. 

8  See  Skinner  v.  Shoppee  et  ux.,  6  Bing.  N.  C.  131  ;  8  Scott,  275  ;  Enipson  v.  Fair- 
fax, 8  A.  &  E.  296  ;  3  X.  &  P.  385  ;  Harrison  v.  Bush,  5  E.  &  B.  344  ;  25  L.  J.  Q.  B. 
99  ;  2  Jur.  N.  S.  90. 

*  See  post,  p.  341  ;  Bailiff  of  Burford  v.  Lenthall  and  others,  2  Atk.  551,  and  Crack- 
nail  V.  Janson  (C.  A.),  11  Ch.  D.  1,  23  ;  27  W.  R.  851  ;  40  L.  T.  640, 

6  49  L.  J.  Ch.  120  ;  28  W.  R.  90 ;  41  L.  T.  531. 

301 


*  340  COSTS. 

defendant's  costs.     And  the  Court  held  that  this  was  all  that  could  he  ex- 
pected of  him.^ 

Payment  into  Court. 

It  has  now  been  finally  decided  by  the  Court  of  Appeal  that 
money  may  be  paid  into  Court  in  any  action  of  libel  or  slander 
without  admitting  the  plaintiff's  cause  of  action,  and  that  any 
other  defence  may  be  pleaded  at  the  same  time,  even  a  justifica- 
tion.^  If  the  plaintiff  accepts  the  sum  paid  into  Court  in  satis- 
faction of  his  claim,  he  must  give  the  defendant  a  notice  in  Form 
No.  6,  Jud.  Act,  1875,  App.  B. ;  and  may  then  proceed  to  tax 
his  costs,  and  in  case  of  non-payment  within  forty-eight 

*  341    hours,  *  may  sign  judgment  for  his  costs.     But  even  in 

this  case  the  plaintiff  is  snl)ject  to  the  general  jurisdiction 
of  the  Court  over  all  costs ;  and  ma}'  be  deprived  of  his  costs, 
if  the  whole  action  was  useless  or  malicious/^  If  the  plaintiff 
does  not  accept  the  sum  paid  into  Court,  but  continues  his  action 
for  the  balance,  he  may  have  to  pay  the  whole  costs  of  the  action, 
should  the  jury  deem  the  sum  paid  insufficient.^  But  the  practice 
in  this  respect  has  lately  changed ;  and  the  rule  now  is,  that  in 
the  absence  of  special  circumstances,  the  plaintiff  shall  have  his 
costs  of  the  action  up  to  the  time  when  the  money  was  paid  into 
Court,  and  the  defendant  shall  have  his  costs  after  that  time.^ 


Counterclaim. 

It  is  very  seldom  that  there  is  a  counterclaim  in  an  action  of 
libel  or  slander  ;  but  wherever  there  is,  its  presence  always  com- 
plicates the  question  of  costs.  The  law  on  this  point  can  hardly 
be  considered  as  settled  at  present.  But  it  is  clear  that  the 
County  Courts  Act,  1867,  does  not  apply  to  actions  of  libel  or 
slander,  nor  to  counterclaims  of  any  kind.^     It  follows  therefore, 

1  As  to  dividing  the  costs  of  a  divisible  plea  of  justification,  see,  under  the  old  prac- 
tice, Biddulph  V.  Chamberlayne,  17  Q.  B.  351  ;  Eej-nolds  v.  Hams,  3  C.  B.  N.  S.  267  ; 
28  L.  J.  C.  P.  26.  As  to  costs  of  immaterial  issues,  see  Goodburne  i:  Bowman,  9 
Bing.  667. 

2  Hawkesley  v.  Bradshaw  (C.  A.),  5  Q.  B.  D.  302  ;  49  L.  J.  Q.  B.  333  ;  28  W.  R. 
557  ;  42  L.  T.  285. 

8  Broadhurst  v.  Willey,  "Weekly  Notes,  1876,  p.  21. 

*  Langridge  v.  Campbell,  2  Ex.  D.  281  ;  46  L.  J.  Ex.  277  ;  36  L.  T.  64  ;  25  W.  R. 
351.  6  Bucktou  V.  Higgs,  4  Ex.  D.  174  ;  27  W.  R.  803  ;  40  L.  T.  755. 

6  Blake  v.  Applevard,  3  Ex.  D.  195 ;  47  L.  J.  Ex.  407  ;  26  W.  R.  592. 
302 


COSTS   OF   COUXTEECLAni.  *  341 

where  the  original  action  is  either  for  libel  or  slander  and  the 
defendant  sets  up  any  counterclaim,  that  if  the  plaintiff  recover 
any  sum  at  all,  even  a  farthing,  and  the  defendant  nothing  on  his 
counterclaim ;  then  the  plaintiff,  in  the  absence  of  any  special 
order  to  the  contrary,  is  entitled  to  the  whole  costs  of  the 
action.i  If  both  recover  somethhig,  *  the  plaintiff  on  his  *  342 
claim  and  the  defendant  on  his  counterclaim,  then  the  one 
who  recovers  the  larger  sum  is  entitled  to  the  general  costs  of  the 
cause  ;  the  other  to  the  costs  only  of  the  particular  issues  which 
have  been  found  in  his  favor.^  If  neither  plaintiff  nor  defendant 
recover  anything,  and  both  claim  and  counterclaim  be  dismissed 
with  costs,  the  plaintiff  pays  the  general  costs  of  the  action,  in- 
cluding those  common  to  both  claim  and  counterclaim,  for  he 
commenced  the  litigation ;  and  the  defendant  pays  only  such 
costs  as  the  plaintiff  can  prove  to  have  been  occasioned  by  the 
counterclaim. 3  If,  however,  the  action  be  not  of  libel  or  slander, 
but  be  such  that  it  could  have  been  brought  in  the  County  Court, 
then  the  plaintiff  cannot  recover  any  costs  at  all  from  the  defend- 
ant, unless  the  damages  exceed  <£20,  in  an  action  of  contract,  or 
jGlO  in  an  action  of  tort ;  while  the  defendant  is  entitled  to  re- 
cover on  his  counterclaim  in  libel  or  in  slander  all  the  costs  of  his 
counterclaim,  if  he  recover  a  farthing  only  thereunder.^ 

*  When  an  action  of  libel  or  slander  is  remitted  to  the    *  343 
County  Court,  under  s.  10   of  the  County  Courts   Act, 
1867,^  the  costs  will  follow  the  event,  unless  the  Judge  at  the  trial 
make  any  order  to  the  contrary ;  ^  the  costs  of  the  proceedings 
in  the  Superior  Court  will  be  allowed  according  to  the  scale  in 

1  Potter  V.  Chambers,  4  C.  P.  D.  457  ;  48  L.  J.  C.  P.  274  ;  27  W.  R.  414. 

2  Blake  v.  Appleyard;  3  Ex.  D.  195  ;  47  L.  J.  Ex.  407 ;  26  W.  K.  592  ;  Hallinan 
V.  Price,  27  W.  R.  490 ;  41  L.  T.  627  ;  Neale  and  others  v.  Clark  and  others,  4  Ex.  D. 
286  ;  41  L.  T.  438 ;  Davidson  v.  Gray,  5  Ex.  D.  189  n,;  40  L.  T.  192  ;  (C.  A.)  42  L. 
T.  834 ;  Cole  v.  Firth,  4  Ex.  D.  301 ;  40  L.  T.  857  ;  Stooke  v.  Taylor,  5  Q.  B.  D.  569  ; 
49  L.  J.  Q.  B.  857  ;  29  W.  R.  49  ;  43  L.  T.  208. 

8  Saner  v.  Bilton,  11  Ch.  D.  416  ;  48  L.  J.  Ch.  545  ;  27  W.  R.  472  ;  40  L.  T.  134, 
followed  in  the  Court  of  Appeal  in  Mason  v.  Brentini,  15  Ch.  D.  287  ;  29  W.  R.  126  ; 
42  L.  T.  726  ;  43  L.  T.  557. 

*  Staples  V.  Young,  2  Ex.  D.  324  ;  25  W.  R.  304  ;  Chatfield  v.  Sedgwick,  4  C.  P. 
D.  459  ;  27  W.  R.  790  ;  41  L.  T.  438 ;  Rutherford  v.  AVilkie,  41  L.  T.  435.  As  to 
when  costs  will  he  given  on  the  "higher  scale,"  se*;  Horner  v.  Oyler,  49  L.  J.  C.  P. 
655,  and  Chapman  v.  Midland  Ry.  Co.,  5  Q.  B.  D.  167  ;  28  W.  R.  413  ;  (C.  A.)  5 
Q.  B.  D.  431  ;  49  L.  J.  Q.  B.  449  ;  28  W.  R.  592 ;  42  L.  T.  612. 

6  30  &  31  Vict.  c.  142. 

6  County  Courts  Act,  1846,  9  &  10  Vict.  c.  95,  s.  88. 

303 


*  343  COSTS. 

use  in  the  Superior  Court ;  the  costs  incurred  subsequent  to  the 
order  of  reference  according  to  the  County  Court  scale. 

Any  costs  occasioned  by  undue  prolixity  in  the  indorsement 
on  the  writ,'  or  in  the  pleadings,^  or  by  delivering  interrogatories 
unnecessarily,  vexatiously,  or  at  improper  length,-^  shall  be  borne 
by  the  party  in  fault.* 

1  Order  II.,  r.  2.  2  Qrder  XIX.,  r.  2.  »  Order  XXXI.,  r.  2. 

*  As  to  costs  in  criminal  proceedings,  see,  as  to  indictments,  post,  p.  590  ;  as  to 
criminal  infonnations,  2Jost,  p.  595. 

304 


♦CHAPTER  XII.  *344 

THE    LAW  OF  PERSONS   IN    BOTH   CIVIL  AND    CRIMINAL   CASES. 

We  have  hitherto  dealt  with  the  plaintiff  and  defendant  as  in- 
dividuals, under  no  disability,  who  sue  and  are  sued  singly  and 
in  their  own  right.  I  propose  in  this  chapter  to  examine  the 
rights  and  liabilities  of  joint  plaintiffs  and  defendants,  and  also  to 
deal  with  cases  of  personal  disability  or  disqualification,  both  in 
civil  and  criminal  cases. 

Formerly  the  law  and  practice  as  to  "  parties  "  was  of  the  ut- 
most importance,  misjoinder  of  a  plaintiff  being  ground  of  nonsuit, 
while  a  non-joinder  of  a  necessary  plaintiff  was  tlie  subject  of  a 
plea  in  abatement.  But  now,  by  Judicature  Act,  1875,  Order 
XIX.,  r.  3,  "  no  plea  or  defence  shall  be  pleaded  in  abatement," 
and  in  Order  XVI.,  r.  13,  the  general  principle  is  laid  down,  that 
"  No  action  shall  be  defeated  by  reason  of  the  misjoinder  of  par- 
ties, and  the  Court  may  in  every  action  deal  with  the  matter  in 
controversy,  so  far  as  regards  the  rights  and  interests  of  the  par- 
ties actually  before  it.  The  Court  or  a  Judge  may,  at  any  stage 
of  the  proceedings,  either  upon  or  without  the  application  of 
either  party,  and  on  such  terms  as  may  appear  to  the  Court  or  a 
Judge  to  be  just,  order  that  the  name  or  names  of  any  party  or 
parties,  whether  as  plaintiffs  or  defendants,  who  ought  to 
have  been  joined,  or  whose  presence  before  the  *  Court  may  *  345 
be  necessary  in  order  to  enable  the  Court  effectually  and 
completely  to  adjudicate  upon  and  settle  all  the  questions  involved 
in  the  action,  be  added."  But  such  order  will  not  as  a  rule  be 
made  where  the  party  applying  for  it  is  clearly  to  blame,  or  where 
a  hardship  would  thus  be  inflicted  on  his  opponent.  And  even 
when  such  an  order  is  made,  it  will  generally  be  only  upon  pay- 
ment of  all  costs  thereby  occasioned.  The  importance  of  this 
branch  of  the  law  is  therefore  scarcely  diminished. 

20  305 


*  345  THE   LAW   OF   PERSONS. 

It  will  be  convenient  to  divide  this  chapter  into  the  following 
heads : — 

1.  Husband  and  Wife. 

2.  Infants. 

3.  Lunatics. 

4.  Bankrupts. 
6.  Receivers. 

6.  Executors  and  Administrators. 

7.  Aliens. 

8.  Master  and  Servant ;  Principal  and  Agent. 

9.  Partners. 

10.  Corporation  and  Companies. 

11.  Other  Joint  Plaintiffs, 

12.  Joint  Defendants. 

1.  Husband  and  Wife. 

Whenever  words  actionable  per  se  are  spoken  of  a  married 

woman  she  may  sue,  but  she  must  join  her  husband's   name  as 

co-plaintiff,  (a)     When  the  words  are  not  actionable  jjej'  se,  she 

may  sue,  provided  she  can  show  that  some  special  damage  has 

followed  from  the  words  to  her.     That  special  damage  has 

*  346    accrued  to  her  *  husband,  in  consequence  of  such  words, 

will  not  avail  her ;  for  such   damage  he  alone  can  sue, 
although  it  is  her  reputation  that  has  been  assailed. 

If  the  wife  has  been  divorced  or  judicially  separated  from  her 
husband,  or  has  obtained  a  protection  order  under  the  20  &  21 
Vict.  c.  85,  s.  21,  she  may  sue  as  a,  feme  sole  without  joining  her 
husband.^  If,  however,  she  be  living  separate  from  her  husband 
voluntarily,  or  under  a  deed  of  separation,  she  must  join  her 
husband  as  a  co-plaintiff,  even  though  the  special  damage  alleged 
be  the  loss  of  her  own  personal  earnings,  which  are  now  by  the 
Married  Women's  Property  Act,  1870,^  s.  1,  her  separate  estate. 
Tiiough  where  the  action  is  brought  solely  "  for  the  protection 
and  security"  of  such  separate  estate  (^e.g.  an  action  for  a  libel 
upon  her  in  the  way  of  her  separate  trade)  ;  there  by  s.  11  she 

1  Hamsden  v.  Brearley,  L.  R.  10  Q.  B.  147  ;  44  L.  J.  Q.  B.  46  ;  23  W.  R.  294; 
32  L.  T.  24. 

2  33  &  34  Vict.  c.  93. 

(«)  This  is  permitted  in  Michi,£;an,  but  Mich.  260.  For  the  common  law  rule  see 
is  not  necessary.     Burt  v.    McBain,   29     Beach  v.  Ranney,  2  Hill,  309. 

306 


HUSBAND   AND   WIFE.  *  346 

may  sue  alone.  In  the  Chancery  Division  the  practice  is  for  a 
married  woman  in  all  actions  relating  to  her  separate  estate  to 
sue  by  her  next  friend,  who  will  be  personally  Hable  for  the 
costs  of  the  action,  and  to  make  her  husband  a  defendant.^  But 
in  the  Common  Law  Divisions  it  is  still  practically  impossible 
for  a  wife  to  sue  her  husband.  Under  special  circumstances, 
however,  a  married  woman  may  by  leave  of  a  Master  at  Cham- 
bers sue  without  her  husband  and  without  her  next  friend,  on 
giving  due  security  for  costs.^ 

If  the  words  be  spoken  of  the  woman  before  marriage,  the 
husband's  name  must  still  be  joined  on  the  writ ;  if  she  marry 
pending  action,  the  husband  should  be  made  a  party  under 
Order  L.,  r.  2. 

*  If  a  married  woman  having  general  separate  estate    *  347 
fail  in  an  action  of  libel,  she  may  be  condemned  in  costs, 
although  her  husband  was  joined  as  a  co-plaintiff.^ 

Whenever  the  wife  is  the  meritorious  cause  of  action,  the  right 
survives  to  her  on  her  husband's  death;  the  widow  continues 
sole  plaintiff  and  the  action  does  not  abate.  If,  however,  the 
wife  dies  before  final  judgment,  the  action  must  cease  ;  it  cannot 
be  continued  by  her  husband  either  jwe  mariti,  or  as  her  ad- 
ministrator. 

In  Scotland  a  married  woman  can  sue  for  libel  or  slander  without  join- 
ing her  husband,  a  curator  ad  litem  being  appointed  ;  and  so  she  can  by 
special  statute  in  ISTew  York  and  Pennsylvania.  But  even  in  those  States 
she  cannot  sue  her  husband  for  slandering  her.'* 

If  defamatory  words  be  spoken  of  a  married  woman  and  dam- 
age thereby  follow  to  her  husband,  the  husband  can  sue  for  the 
damage  that  has  ensued  to  himself:  and  this  whether  the  wife 
has  suffered  any  special  damage  also  or  not.  Formerly  he  would 
have  been  compelled  to  bring  a  separate  action  ;  by  the  Common 
Law  Procedure  Act,  1852,  s.  40,  the  husband  was  allowed  to 
add  claims  in  his  own  right  whenever  he  was  necessarily  made  a 

1  Roberts  v.  Evans,  7  Ch.  D.  830  ;  47  L.  J.  Ch.  469 ;  26  W.  R.  280  ;  38  L.  T.  09. 

2  Older  XVI.,  r.  8  ;  Martano  v.  Mann  (C.  A.),  U  Ch.  D.  419  ;  49  L.  J.  Cli.  510  ; 
42  L.  T.  890. 

8  Newton  and  wife  v.  Boodle  and  others,  4  C.  B.  359  ;  18  L.  J.  C.  P.  73  ;  Morris 
V.  Freeman  and  wife,  3  P.  D.  65  ;  47  L.  J.  P.  D.  &  A.  79  ;  27  W.  R.  62  ;  39  L.  T.  125. 

*  Freethy  v.  Freetliy,  42  Barb.  (N.  Y.)  641;  Tibbs  v.  Brown,  2  Grant's  Cas. 
(Penns.)  39. 

307 


*  3-17  THE   LAW   OF   PERSONS. 

co-plaintiff  in  any  action  brought  for  an  injury  done  to  Lis  wife  ; 
and  it  was  provided  that  on  the  death  of  either  party  the  action 
should  not  abate  so  far  as  the  causes  of  action  belonging  to  the 
survivor  were  concerned.  And  now,  by  Order  XVII.,  r.  4, 
"  Claims  by  or  against  husband  and  wife  may  be  joined  with 
claims  by  or  against  either  of  them  separately." 

*  348        *  This  right  of  the  husband  to  sue  for  words  defamatory  of  his 

wife  is  somewhat  anomalous,  for  his  reputation  is  in  no  way 
assailed ;  and  though  he  has  sustained  damage,  is  it  not  damnum  sine  in- 
jurid?  Generally  speaking,  if  words  defamatory  of  A.,  but  not  actionable 
in  themselves,  produce  damage  only  to  B.,  neither  A.  nor  B.  can  sue.  But 
the  reputation  of  a  husband  is  so  intimately  connected  with  that  of  his 
wife,  that  he  has  always  been  allowed  to  sue  whenever  he  has  received 
damage,  just  as  though  the  words  had  been  spoken  of  him. 

And  it  would  seem  that  this  right  attaches  even  where  the  words  are  not 
actionable  per  se ;  so  that  if  such  words  be  spoken  of  a  married  woman 
and  damage  ensue  to  the  husband,  and  none  to  her,  she  cannot  sue,  but  he 
can.  The  damage  to  him  is  in  fact  the  sole  cause  of  action.  That  this  is  law, 
is  clearly  laid  down  in  Siderfin,  346,  under  the  year  1667:  —  "Xota,  si 
parols  queux  de  eux  m  ne  sont  Actionable  mes  solement  in  respect  del 
collateral  dams,  sont  pie.  (paries)  del  feme  covert,  Le  Baron  sole  port 
L'action,  et  si  le  feme  soit  joyn  ove  luy  le  Judgment  serra  pur  ceo  arrest, 
coment  soit  apres  verdict."  Other  cases  of  that  date  turn  almost  entirely 
on  points  of  pleading  (e.g.,  whether  the  declaration  should  end  "  ad  dam- 
num ipsius"  or  "ad  damnum  ipsorum '').-^  But  so  far  as  they  decide  any 
matter  of  principle,  these  cases  are  not  inconsistent  with  the  above  citation 
from  Siderfin;  neither  is  Eussell  et  v.x.  v.  Corne  (1704),^  which  was  at  that 
date  the  leading  case  on  the  subject  of  battery  of  a  wife.  And  this  view 
is  certainly  confirmed  by  the  recent  case  of  Eiding  v.  Smith,^  where  the 
wife's  name  was  struck  off  the  record  by  the  judge  at  the  trial,  and  the 
husband  recovered  for  the  damage  to  his  business  caused  by  words  not 
actionable  joer  se,  spoken  of  his  wife ;  though  there  it  is  true  the  judges  of 
the  Exchequer  Division  base  their  judgment  on  the  fact  that  Mrs.  Eiding 
helped  her  husband  in  the  shop,  and  was  therefore  his  servant  or  assistant 

as  well  as  his  wife.     It  will  clearly,  therefore,  be  prudent  for  the 

*  349    pleader  to  make  a  separate  claim  for  damages  for  the  husband  *  in 

all  cases  of  the  class  of  AUsop  v.  Allsop.* 

1  Harwood  et  ux.  v.  Hardwick  et  ux.  (1668),  2  Keble,  387  ;  Coleman  ct  ux.  v.  Har- 
court  (1664),  1  Levinz,  140;  Grove  et  ux.  v.  Hart  (1752),  B.  N.  P.  7. 

2  1  Salk.  119  ;  6  Mod.  127 ;  2  Ld.  Rayra.  1031. 

3  1  Ex.  D.  91  ;  45  L.  J.  Ex.  D.  281  ;  24  W.  R.  487  ;  34  L.  T.  500. 
*  5  H.  &  N.  534  ;  29  L.  J.  Ex.  315. 

308 


HUSBAND  AND   WIFE. 


Illustrations. 


349 


Where  words  actionable  per  se  were  spoken  of  a  married  woman,  she  was  allowed  to 
recover  only  205.  damages  ;  all  the  special  damage  which  she  proved  at  the  tiial  was 
held  to  have  accrued  to  her  husband,  and  not  to  her  :  he  ought  therefore  to  have  sued 
for  it  in  a  separate  action.  He  could  now  claim  such  damage  in  the  statement  of  claim 
in  his  wife's  action.     Dcugate  and  wife  v.  Gardiner,  4  M.  &  W.  5  ;  2  Jur.  470. 

Where  a  married  woman  lived  in  service  apart  from  her  husband,  maintaining  her- 
self, and  was  dismissed  in  consequence  of  a  libellous  letter  sent  to  her  master,  it  was 
held  that  the  husband  could  sue  :  for  his  was  the  special  damage  (before  the  iMarrie.l 
Women's  Property  Act,  1870).     Coward  v.  Wellington,  7  C.  &  P.  631. 

In  such  a  case,  had  the  cause  of  her  dismissal  been  slanderous  words  not  actionable 
2yer  se,  the  wife  could  not  (before  the  Married  Women's  Property  Act,  1870,  at  all 
events)  have  joined  in  the  action  at  all.  She  would  have  been  held  to  have  suffered 
no  damage  at  all,  her  personal  property  belonging  entirely  to  her  husband.  Per  Lord 
Campbell  in  Lynch  v.  Knight  and  wife,  9  H.  L.  C.  589  ;  8  Jur.   N.  S.  724  ;  5  L.  T. 

291. 

The  female  plaintiff  lived  separate  from  her  husband  and  kept  a  boarding  house. 
The  defendant  spoke  words  imputing  to  her  insolvency,  adultery,  and  prostitution  ; 
some  of  her  boarders  left  her  in  consequence,  and  certain  tradesmen  refused  her  credit. 
After  verdict  for  the  plaintiff,  judgment  was  arrested,  on  the  ground  that  the  husband 
should  have  sued  alone,  for  the  words  were  actionable  only  by  reason  of  the  damage  to 
the  business  and  such  damage  was  solely  his.  SaviUe  ct  ux.  v.  Sweeny,  4  B.  &  Adol. 
514;  1  N.  &M.  254. 

And  so  in  America  where  a  married  woman  was  living  apart  from  her  husband  under 
articles  of  separation,  wherein  the  husband  had  covenanted  that  she  might  use  his 
name  in  suing  for  any  injury  to  her  person  or  character,  and  the  wife  brought  an  action 
for  slander  in  the  joint  names  of  her  husband  and  herself  ;  the  defendant  induced  the 
husband  to  execute  a  deed  releasing  the  cause  of  action,  and  i-lcaded  the  release  in  bar 
of  the  wife's  action,  and  the  Court  was  compelled  to  hold  this  deed  a  good  answer  to 
the  action.     Beach  ct  ux.  v.  Beach,  2  Hill  (N.  Y.),  260. 

A  married  woman  trading  under  her  own  name  according  to  the  custom  of  London, 
may  sue  as  a  trader  without  joining  her  husband,  for  a  libel  on  her  in  the  way  of  her 
trade.     Per  Brett,  J.,  L.  R.  9  C.  P.  583. 

A  married  woman  carrying  on  a  separate  trade  within  the  meaning  of  the  Mairied 
Women's  Property  Act,  1870,  sect.  1,  may  by  sect.  11  sue  without  joining  her  husband 
for  any  tort  affecting  such  separate  trade  or  her  credit  therein.  Summers  v.  City  Bank, 
L.  R.  9  C.  P.  580;  43  L.  J.  C.  P.  261. 

*  Where  the  libel  imputed  that  the  plaintiff,  a  married  man,  kept  a  gaming-     *  350 
house,  and  that  his  wife  was  a  woman  of  notoriously  bad  character,  and  the 
wife  fell  ill  and  died  in  consequence,  evidence  of  such  damage  was  excluded  in  an 
action  brought  by  the  sui-viving  husband  alone.     Guy  v.  Gregory,  9  C.  &  P.  584.     And 
see  Wilson  v.  Goit,  3  Smith  (17  N.  Y.  R.),  445,  ante,  p.  313. 

Words  directly  defamatory  of  the  wife  may  also  be  defamatory  of  the  husband,  who 
may  therefore  sue  alone.  Thus  where  defendant  said  to  plaintiffs  wife  :  "You  are  a 
nuisance  to  live  beside  of.  You  are  a  bawd  ;  and  your  house  is  no  better  than  a  bawdy- 
house,"  it  was  held  unnecessary  to  make  the  wife  a  party  to  the  action,  although  the 
husband  proved  no  special  damage.  For  had  the  charge  been  true,  the  plaintiff  might 
have  been  indicted  as  well  as  his  wife.     Huckle  v.  Reynolds,  7  C.  B.  N.  S.  114  ;  Cole- 

309 


*  350  THE   LAW   OF   PERSONS. 

man  et  ux.  v.  Harcourt  (1664),  1  Lev.  140.  And  see  Bash  v.  Sommer,  20  Pennsylvania 
St.  R.  159. 

Where  the  defendant  said  to  the  plaintiff,  an  innkeeper,  "  Thy  house  is  infected 
with  the  pox,  and  thy  wife  was  laid  of  the  pox,"  it  was  held  that  the  husband  could 
sue  ;  for  even  if  smallpox  only  was  meant,  the  words  were  still  actionable,  ' '  for  it  is  a 
discredit  to  the  plaintiff,  and  guests  would  not  resort  hither."  Damages  £50.  Levet's 
Case,  Cro.  Eliz.  289. 

"If  an  innkeeper's  wife  be  called  'a  cheat,'  and  the  house  lose  the  trade,  the  hus- 
band has  an  injury  by  the  words  spoken  of  his  wife."  Per  Wythens,  J.,  in  Baldwin 
V.  Flower  (1688),  o  Mod.  120;  Grove  et  ux.  v.  Hart  (1752),  B.  N.  P.  7. 

For  all  libels  published,  or  slanders  uttered,  by  the  wife  during 
coverture,  her  husband  is  liable,  and  must  always  be  joined  with 
her  as  a  defendant,  (a)  This  is  so,  even  where  the  plaintiff 
wishes  to  charge  the  wages  and  earnings  of  the  wife,  which  are 
now  her  separate  property ;  for  the  Married  Women's  Property 
Act,  1870,  makes  no  alteration  in  the  position  of  a  married  woman 
as  defendant.^ 

For  all  libels  published,  or  slanders  uttered  by  the  wife  before 
coverture,  her  husband  was  at  common  law  liable  to  the  full  ex- 
tent. But  on  this  point  the  law  has  recently  been  altered 
*  351  by  the  Married  Women's  Property  *  Act  Amendment  Act, 
1874,2  ss.  2,  5,  which  limit  the  liability  of  the  husband  for 
torts  committed  by  his  wife  dum  sola  to  the  extent  merely  of  the 
property  which  has  vested  in  him  by  reason  of  the  marriage. 
Still  the  husband  must  be  made  a  joint  defendant  in  every  case, 
and  must  plead  specially  that  no  property  came  to  him  with  his 
wife,  if  such  be  the  fact. 

If  the  husband  dies,  the  action  continues  against  the  widow  ; 
if  however  the  wife  dies  in  the  lifetime  of  her  husband,  the  action 
immediately  abates.     If  they  be  divorced,  the  wife  must  be  sued 

1  Hancocks  &  Co.  v.  Madame  Demeric-Lablache ;  3  C.  P.  D.  197 ;  47  L.  J.  C.  P. 
614  ;  26  W.  R.  402  ;  38  L.  T.  753. 

2  37  &  38  Vict.  c.  50. 

(rt)  At  common  law  words  which  Rex  v.  Hughes,  2  Lewin,  C.  C.  229 ;  Rex 
charged  the  wife  with  crimes  uttered  in  v.  Pollard,  8  Car.  &  P.  553;  Rex  v.  Staple- 
presence  of  the  husband,  or  jointly  with  ton,  1  Jebb,  C.  C.  93;  1  Greenl.  Ev.  §  28, 
him,  imputed  no  act  for  which  she  would  n.  5.  Hence  an  action  for  slander  can  now 
be  criminally  liable  ;  and  hence  no  action  be  maintained  in  such  a  case.  Nolan  v. 
could  be  maintained  by  her  for  slander,  Traber,  szipra.  But  .see  Bash  v.  Sommer, 
either  with  or  without  her  husband.  Nolan  20  Penn.  St.  159.  Concerning  husband 
V.  Traber,  49  Md.  460.  This  proceeded  or  wife  as  witness  in  the  action  see  Haw- 
upon  a  presumption  of  coercion.  But  this  ver  v.  Hawver,  78  111.  412;  Duval  v. 
presumption  may  now  be  rebutted  even  in  Davey,  32  Ohio  St.  604  ;  Beunilield  v. 
England.  lb.  ;  Taylor,  Ev.   191  (6th  ed.);  Hypres,  38  Ind.  498. 

310 


INFANTS.  *  351 

alone,  even  though  the  words  complained  of  were  published  be- 
fore the  divorce.^  So  in  the  case  of  a  judicial  separation.^  But 
if  the  husband  and  wife  voluntarily  live  apart  under  a  separation 
deed,  the  common  law  rule  prevails,  and  the  husband  must  be 
joined  as  a  defendant.^ 

A  married  woman  will  be  held  criminally  liable  for  a  libel  she 
has  published.*  Her  coverture  will,  it  seems,  be  no  defence  to 
an  indictment  for  a  misdemeanor.^ 

Illustrations. 

Plaintiff  sued  Orchard  and  his  wife  for  slanderous  words,  the  jury  found  that  Or- 
chard had  spoken  the  words,  but  not  Mrs.  Orchard.  Judgment  against  the  husband. 
It  was  moved  in  arrest  of  judgment  that  the  speaking  of  the  words  could  not  be  a  joint 
act,  and  that  if  the  husband  alone  uttered  them,  the  wife  ought  never  to  have  been 
made  a  party  to  the  action.  But  it  was  held  that  this  defect  was  cured  by  the  verdict, 
and  that  the  plaintiff  was  entitled  to  retain  his  judgment.  Burcher  v.  Orchard  et  uz:, 
(1652)  Style,  349.     But  see  Swithin  et  ux.  v.  Vincent  ct  ux.,  (1764)  2  Wils.  227. 

Mrs.  Harwood  slandered  Mrs.  White  ;  wherefore  White  and  wife  sued  *  352 
*  Harwood  and  wife.  Pending  action,  Harwood  died,  and  his  widow  remar- 
ried. The  Court  was  very  much  puzzled,  and  gave  no  judgment,  apparently,  though 
inclining  to  think  that  the  writ  abated.  I  think  it  would  now  depend  on  whether  the 
widow  had  any  property  at  the  date  of  her  second  marriage  ;  if  so,  the  second  hus- 
band could  be  added  under  Order  L.,  r.  2 ;  if  not,  the  action  would  probably  be  held  to 
abate  :  but  it  would  certainly  be  but  little  use  continuing  it.  See  the  Married  Women's 
Property  Act  Amendment  Act,  1874  (37  &  38  Vict.  c.  50),  s.  2.  White  et  ux.  v.  Har- 
wood ct  ux.,  (1648)  Style,  138;  Vin.  Abr.  "Baron  and  Feme,"  A.  a. 

2.  Infants. 

An  infant  may  sue  by  his  next  friend,  as  before  the  Judicature 
Act.  The  next  friend  of  an  infant  is  personally  liable  for  the 
costs  of  the  suit ;  ^  but  security  for  costs  will  not  as  a  rule  be  re- 
quired from  him,  lest  the  infant  should  lose  his  rights  altogether. 
That  an  infant  has  been  defamed  gives  his  parents  no  right  of 
action,  unless  in  some  very  exceptional  case  it  deprives  the  parent 
of  services  which  the  infant  formerly  rendered,  in  which  case  an 

1  Capel  V.  Powell  and  another,  17  C.  B.  N.  S.  743  ;  34  L.  J.  C.  P.  168  ;  10  Jur. 
K  S.  1255  ;  13  W.  R.  159  ;  11  L.  T.  421. 

2  20  &  21  Vict.  c.  85,  ss.  25,  26. 

8  Head  v.  Briscoe  et  ux.,  5  C.  &  P.  485  ;  2  L.  J.  C.  P.  101, 
*  R.  V.  Mary  Carlile,  3  B.  &  Aid.  167. 

6  R.  V.  Ingram,  1  Salk.  384  ;  R.  v.  Cruse  and  Mary  his  wife,  2  Moo.  C.  C.  53 ;  8  C. 
&P.  541. 

6  Caley  v.  Caley,  25  W.  R.  528. 

311 


*352  THE  LAW   OF   PEESONS. 

action  on  the  case  may  lie  for  the  special  damage  thus  wrongfully 
inflicted,  provided  it  be  the  natural  and  probable  consequence  of 
the  defendant's  words.^  A  child  will  be  held  to  be  the  servant 
of  its  parents,  provided  it  is  old  enough  to  be  capable  of  render- 
ing them  any  act  of  service.^  An  infant  defends  by  a  guardian 
ad  litem  ap^jointed  ex  parte  by  the  Master  or  District  Registrar 
upon  the  infant's  petition,  supported  by  affidavit.  Any  fit  and 
proper  person  sui  juris  and  within  the  jurisdiction  ma}^  be  ap- 
pointed, if  he  has  no  adverse  interest.  A  co-defendant  in  the 
same  interest  may  be  appointed.  If  an  infant  defendant 
*  353  do  not  appear  to  a  writ  duly  served,  *  the  plaintiff  may 
by  virtue  of  Order  XIII.,  r.  1,  apply  ex  parte  to  a  Master 
or  District  Registrar,  on  an  affidavit  of  due  service  both  of  the 
writ  and  of  notice  of  this  application,  for  an  order  appointing 
some  proper  person  guardian  ad  litem.  A  guardian  ad  litem  is 
not  liable  for  costs,  unless  he  has  been  guilty  of  gross  mis- 
conduct. 

The  infancy  of  the  defendant  is  of  course  no  defence  to  any  ac- 
tion of  tort  not  founded  on  contract.  In  Defries  v.  Davies,^  the 
defendant,  a  lad  of  fifteen,  was  imprisoned  for  default  in  payment 
of  damages  and  costs  for  a  slander. 

An  infant  will  also  be  criminally  liable  for  anj'  libel,  if  he  be 
above  the  age  of  fourteen.  If  he  be  under  fourteen  but  above 
seven,  he  might  possibly  be  found  guilty  of  a  libel,  if  evidence 
were  given  of  a  disposition  prematurely  wicked.  Malitia  supplet 
cetatem.  But  much  more  than  the  proof  of  express  malice  ordi- 
narily given  in  cases  of  privilege  would  probably  be  required.  A 
child  under  seven  cannot  possibly  commit  any  crime. 

8.  Lunatics. 

It  is  almost  inconceivable  that  an  admitted  lunatic  should  bring 
an  action  of  libel  or  slander.  But,  should  such  an  event  happen, 
he  ought  to  sue  by  his  next  friend,  if  he  has  not  yet  been  found 
of  unsound  mind  bj'^  inquisition  ;  if  he  has  been,  then  by  his  com- 
mittee, who  before  commencing  the  action  must  obtain  the  sanc- 

1  See  ])ost,  Master  and  Servant,  p.  358. 

2  Dixon  V.  Bell,  5  Maule  &  S.  198  ;  Hall  v.  Hollander,  4  B.  &  C.  660  ;  7  D.  &  K. 
133;  Evans  v.  AValton,  L.  R.  2  C.  P.  615;  15  W.  R.  1062. 

3  7  C.  &  P.  112  :  3  Dowl.  629. 

312 


BANKRUPTS.      EECEIVERS.  *  353 

tion  of  the  Lords  Justices  and  of  the  Master  in  Lunacy  in  the 
proper  way. 

Lunatics  defend  an  action  by  their  committee,  if  one  be  ap- 
pointed, and  if  he  has  no  adverse  interest ;  in  other  cases  by  a 
guardian  ad  litem  appointed  in  the  same  way  as  in  the  case 
of  an  infant.i  *  Lunacy  is  in  England  no  defence  to  an  *  354 
action  for  slander  or  libel.^  In  America,  however,  insanity 
at  the  time  of  speaking  the  words  is  considered  a  defence,  "  where 
the  derangement  is  great  and  notorious,  so  that  the  speaking  the 
words  could  produce  no  effect  on  the  hearers,"  because  then  "  it 
is  manifest  no  damage  would  be  incurred."  But  where  the  de- 
gree of  insanity  is  slight,  or  not  uniform,  there  evidence  of  it  is 
only  admissible  in  mitigation  of  damages. ^ 

A  lunatic  cannot  be  held  criminally  liable  for  a  libel,  published 
under  the  influence  of  mental  derangement;  but  the  onus  of 
proving  this  defence  lies  on  the  accused. 

4.  Bankrupts. 

An  undischarged  bankrupt  may  sue  for  and  recover  damages 
for  a  personal  wrong  such  as  libel  or  slander,  nor  will  such  dam- 
ages pass  to  his  trustee  under  s.  15  of  the  Bankruptcy  Act,  1869.* 
The  right  of  action  is  not  assignable.^  A  defendant  if  sued  by  a 
bankrupt  or  one  whose  affairs  are  actually  in  Hquidation  is  en- 
titled to  have  security  given  for  the  costs  of  the  action.^ 

*  5.  Receivers.  *  355 

If  receivers  appointed  by  the  Court  of  Chancery  in  an  admin- 
istration suit  to  carry  on  a  gazette,  publish  a  libel  therein,  they 
are  of  course  personally  liable  to  the  defendant  for  damages  and 
costs.     The  damages,  it  would  seem,  may  be  paid  out  of  the 

1  See  ante,  p.  352,  and  Order  XIII.,  r.  1. 

2  Per  Kelly,  C.B.,  in  Mordaunt  v.  Mordaunt,  39  L.  J.  Prob.  &  Matr.  59. 

3  Dickinson  v.  Barber,  9  Tyng  (Mass.),  218  ;  Yeates  et  iix.  v.  Reed  ct  ux.,  4  Black- 
ford (Indiana),  463  ;  Horner  v.  Marshall's  Administratrix,  5  Munford  (Virginia),  466. 

*  Dowling  V.  Browne  (1854),  4  Ir.  C.  L.  R.  265 ;  Ex  parte  Vine,  In  re  Wilson,  8 
Ch.  D.  364 ;  26  W.  R.  582 ;  38  L.  T.  730. 

*  Benson  v.  Flower,  Sir  Wni.  Jones,  215. 

6  Common  Law  Procedure  Act,  1852,  s.  142.  Brocklebank  &  Co.  v.  King!s  Lynn 
Steamship  Co.,  3  C.  P.  D.  365  ;  47  L.  J.  C.  P.  321 ;  38  L.  T.  489. 

313 


*  355  THE   LAW   OF   PERSONS. 

estate,  but  not  the  costs  ;  those  the  receivers  must  pay  out  of 
their  own  pocket.^     So  in  America.^ 

6.  Executors  and  Administrators. 

The  maxim  actio  personalis  cum  persond  moritnr  applies  to  all 
actions  of  libel  and  slander.  If,  however,  a  verdict  be  obtained, 
and  then  plaintiff  die,  his  executor  may  enter  up  judgment.^  But 
if  interlocutory  judgment  be  signed  and  a  writ  of  inquiry  issue, 
and  then  plaintiff  die,  final  judgment  cannot  be  entered.*  And 
the  law  on  this  point  is  in  no  way  altered  by  Order  L.,  r.  1.  But 
if  final  judgment  has  once  been  entered  in  the  plaintiff's  favor, 
and  then  defendant  appeals,  the  action  will  not  abate  ;  but  the 
executors  or  administrators  of  the  late  plaintiff  may  appear  as 
respondents  to  the  appeal.^     So  in  America.^ 

*356  *7.  Aliens. 

An  alien  friend  residing  abroad  may  sue  in  England  for  a  libel  or 
slander  published  of  him  in  England."  The  place  where  the  words 
were  spoken  or  published  is  the  test  of  jurisdiction  ;  not  the  dom- 
icile of  the  plaintiff  or  the  defendant.^  But  a  foieign  plaintiff,  if 
domiciled  abroad,  will  be  ordered  to  give  security  for  costs,  unless 
he  either  has  real  property  within  jurisdiction  available  in  execu- 
tion, or  is  co-plaintiff  with  others  resident  in  England.  Plaintiffs 
resident  in  Scotland  and  Ireland  are  not,  however,  considered 
foreigners  for  this  purpose.^ 

If,  however,  an  English  plaintiff  goes  to  reside  out  of  jurisdic- 
tion during  the  action,  he  may  be  ordered  to  give  security  for 
costs,  and  that  for  costs  already  incurred  as  well  as  past  costs. ^'^ 
On  the  other  hand,  if  an  alien  plaintiff  happen  to  be  within  juris- 
diction at  the  date  of  the  application,  no  order  for  security  for 

.    1  Stubbs  V.  JIarsh,  15  L.  T.  312.  2  Jlarten  v.  Van  Schaick,  4  Paige,  479. 

8  17  Car.  II.  c.  8  ;  Palmer  v.  Cohen,  2  B.  &  Adol.  966  ;  cf.  Kramer  v.  "Waj-mark, 
L.  R.  1  Ex.  241  ;  35  L.  J.  Ex.  148  ;  12  Jur.  N.  S.  395  ;  14  W.  R.  659  ;  14  L.  T.  368. 

*  8  &  9  Will.  III.  c.  11,  s.  6  ;  Ireland  v.  Champneys,  4  Taunt.  884. 

6  Twycrossu 'Grant  and  others  (C.  A.),  4  C.  P.  D.  40  ;  47  L.  J.  Q.  B.  676  ;  27  W. 
R.  87;  39  L.  T.  618. 

6  Sandford  v.  Bennett,  24  N.  Y.  20. 

7  Pisani  v.  Lawson,  6  Bing,  N.  C.  90  ;  5  Scott,  418.  »  Order  XL,  r.  2. 
»  31  &  32  Vict.  c.  54,  s.  5. 

w  Massey  v.  Allen,  12  Ch.  D.  807  ;  48  L.  J.  Ch.  692  ;  28  W.  R.  243. 

.314 


ALIENS.  *  356 

costs  can  be  made  against  him,  even  though  it  is  admitted  that  he 
intends  to  return  to  the  continent  as  soon  as  the  case  is  at  an 
end.^ 

That  the  plaintiff  is  an  outlaw  is  ground  for  staj'ing  proceed- 
ings.^ But  such  stay  will  be  removed  on  the  reversal  of  the 
outlawry.^  But  now  no  person  can  be  outlawed  in  any  civil  pro- 
ceeding.^ 

Every  foreigner  within  jurisdiction  for  however  short 
*  a  time  owes  the  Queen  allegiance  during  his  stay,  and  is  *  S57 
subject  to  our  laws.  He  will  be  liable  therefore,  both 
civilly  and  criminally,  for  every  libel  published  within  the  juris- 
diction of  the  English  courts  ;  he  will  also  be  civilly  liable  for 
every  slander  uttered  within  jurisdiction.  If  he  has  left  England 
before  the  writ  is  issued,  plaintiff  must  apply,  under  Order  XI., 
for  leave  to  issue  a  writ  and  give  the  defendant  notice  thereof  in 
lieu  of  service  out  of  the  jurisdiction.^ 

But  if  the  words  be  spoken  out  of  jurisdiction,  the  fact  that 
they  incidentally  affect  property  within  jurisdiction  is  not  suffi- 
cient to  bring  the  case  within  Order  XI. 

Illustrations. 

The  defendant  out  of  jurisdiction  made  a  statement  in  the  nature  of  slander  of  title 
to  the  plaintiff's  ship.  The  Court  refused  to  allow  the  writ  to  be  served,  although  the 
ship  was  at  the  time  within  jurisdiction.  Casey  v.  Arnott,  2  C.  P.  D.  24  ;  46  L.  J.  C.  P. 
3  ;  25  W.  K.  46  ;  35  L.  T.  424. 

A  French  refugee  in  England  wrote  a  stilted  poem  about  the  apotheosis  of  Napoleon 
Buonaparte,  then  first  consul  of  the  French  Republic,  suggesting  that  it  would  be  an 
heroic  deed  to  assassinate  him.  He  was  held  amenable  to  the  English  criminal  law, 
although  the  libel  was  purely  political,  affecting  no  one  in  the  British  Isles,  and  at- 
tacked the  man  who  was  England's  greatest  enemy  at  the  time.  The  jury  found  him 
guilty  ;  but  war  broke  out  again  between  England  and  France  soon  afterwards,  and  no 
sentence  was  ever  passed.     R.  v.  Jean  Peltier,  28  Howell's  St.  Tr.  617. 

1  Redondo  v.  Chaytor  (C.  A.),  4  Q.  B.  D,  453  ;  48  L.  J.  Q.  B.  697  ;  27  W.  R.  701  ; 
40  L.  T.  797. 

2  R.  V.  Lowe  and  Clements,  8  Ex.  697  ;  22  L.  J.  Ex.  262. 

8  Somers  v.  Holt,  3  Dowl.  506.  *  42  &  43  Vict.  c.  59,  s.  3. 

6  Westman  v.  Aktiebolaget  &c.,  1  Ex.  D.  237  ;  45  L.  J.  Ex.  327  ;  24  W.  R.  405  ; 
Beddington  v.  Beddington,  1  P.  D.  426  ;  45  L.  J.  P.  D.  44  ;  24  W.  R.  348  ;  34  L.  T. 
366  ;  Bustros  v.  Bustros,  49  L.  J.  Ch.  396  ;  28  W.  R.  595.  (For  the  form  of  such 
notice  see  Judicature  Act,  1875,  Appendix  A.,  form  No.  3.) 

315 


358  THE  LAW   OF  PEESOXS. 


*  358      *  8.  Master  and  Servant  —  Principal  and  Agent. 

If  a  servant  or  apprentice  be  libelled  or  slandered  he  can  of 
course  sue  in  his  own  right.  In  some  cases  his  master  also  can 
sue  in  an  action  on  the  case,  if  the  words  have  directly  caused 
him  pecuniary  loss;  e.g.  if  the  servant  has  been  arrested,  and  the 
master  deprived  of  his  services  in  consequence  of  the  defendant's 
words ;  or  if  in  any  other  way  the  natural  consequence  of  the 
words  spoken  has  been  to  injure  the  master  in  the  way  of  his 
trade.  And  this  appears  to  be  the  law  whether  the  words  be 
actionable  j9er  se  or  not. 

Illustrations. 

If  defendant  threaten  plaintiff's  workmen,  so  that  they  dare  not  go  on  with  their 
work,  and  the  plaintiff  in  consequence  loses  the  profit  he  would  have  made  on  the  sale 
of  his  goods,  an  action  lies.  Garret  v.  Taylor  (1621),  Cro.  Jac.  567  ;  1  Roll.  Abr.  108.; 
Springhead  Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551  ;  37  L.  J.  Ch.  889  ;  16  W.  R.  1138  ; 
19  L.  T.  64. 

"Supposing  the  statement  made  not  to  be  slander,  but  something  else  calculated  to 
injure  the  shojikeeper  in  the  way  of  his  trade,  as  for  instance  a  statement  that  one  of 
his  shopmen  was  suffering  from  an  infectious  disease,  such  as  scarlet-fever,  this  would 
operate  to  prevent  people  coming  to  the  shop  ;  and  whether  it  be  slander  or  some  other 
statement  which  has  the  effect  I  have  mentioned,  an  action  can,  in  my  opinion,  be 
maintained  on  the  ground  that  it  is  a  statement  made  to  the  public  which  world  have 
the  effect  of  preventing  their  resorting  to  the  shop  and  buying  goods  of  the  owner." 
Per  Kelly,  C.B.,  in  Riding  v.  Smith,  1  Ex.  D.  94. 

Mrs.  Riding  assisted  her  husband  in  his  shop  ;  words  not  actionable  per  se  were 
spoken  of  her  which  by  natural  consequence  injured  the  trade  of  the  shop.  Mrs.  Riding 
sued  the  speaker,  joining  her  husband  for  conformity.  At  the  trial  it  became  clear 
that  the  only  special  damage  was  to  the  husband.  Thereupon  the  plaintiff's  counsel 
applied  to  have  the  wife's  name  struck  off  the  record.  The  learned  judge  made  the  re- 
quired amendment,  and  the  action  then  became  an  action  by  a  master  for  injury  to  his 
business  caused  by  slander  of  his  assistant  in  that  business.  Held,  that  the  action 
lay.     Riding  v.  Smith,  1  Ex.  D.  91  ;  45  L.  J.  Ex.  281  ;  24  W.  R.  487  ;  34  L.  T.  500. 

*  359  *  If  an}^  agent  or  servant  be  in  any  way  concerned  in 
writing,  printing,  publishing,  or  selling  a  libel,  he  will  be 
both  civilly  and  criminally  liable.  If  a  clerk  or  servant  copy  a 
libel,  and  deliver  the  copy  he  has  made  to  a  third  person,  he  will 
be  liable  as  a  publisher.  That  his  master  or  employer  ordered 
him  to  do  so,  will  be  no  defence.'  "  For  the  warrant  of  no  man, 
not  even  of  the  king  himself,  can  excuse  the  doing  of  an  illegal 
act ;  for  although  the  commanders  are  trespassers,  so  are  also  the 

1  Per  Wood,  B.,  in  Maloney  v.  Bartlej^  3  Camj).  210. 

316 


MASTER   AND   SERVANT.  *  359 

persons  wlio  did  the  fact."  ^  The  agent  or  servant  cannot  recover 
any  contiibutiuii  fiom  his  employer;  2  and  any  promise  to  indem- 
nify him  against  the  consequences  of  the  publication,  or  against 
the  costs  of  an  action  brought  for  the  libel,  will  be  void.^ 

But  it  will  be  a  defence  if  the  agent  or  servant  can  satisfy  the 
jury  that  he  never  read  the  paper  he  delivered  and  was  wholly 
ignorant  that  it  was  a  libel ;  e.g.  where  a  postman  or  messenger 
carries  a  sealed  letter  of  the  contents  of  which  he  is  not  conscious. 

So,  too,  a  servant  or  agent  will  be  liable  for  any  slander  uttered 
on  his  master's  behalf  and  by  his  master's  orders :  but  here  he 
cannot  set  up  as  a  defence  that  he  did  not  know  his  master's 
orders  were  illegal ;  for  he  must  be  conscious  of  what  he  himself 
is  saying. 

Illustrations. 

A  compositor  will  be  criminally  liable  for  setting  up  the  type  of  a  libel ;  so  ■snll  the 
man  whose  business  it  is  merely  to  clap  down  the  press.  E.  v.  Knell  (1728),  1  Barnard. 
305  ;  R.  V.  Clerk,  1  Barnard.  304. 

A   porter  who,   in   the   course   of  business,   delivers   parcels   containing 
*  libellous  handbills,  is  not  liable  in  an  action  for  libel,  if  shown  to  be  ig-     *  360 
norant  of  the  contents  of  the  parcel ;  for  he  is  but  doing  his  duty  in  the 
ordinary  way.     Day  v.  Bream,  2  M.  &  Rob.  54. 

A  master  or  principal  will  be  liable  to  an  action,  if  false  de- 
famatory words  be  spoken  or  published  by  his  servant  or  agent 
with  his  authority  and  consent.  The  mere  fact  that  the  actual 
publisher  was  the  servant  or  agent  of  the  defendant  is  not  alone 
sufficient ;  for  authority  to  commit  an  unlawful  act  will  not  in 
general  be  presumed.  It  must  be  further  proved  that  the  servant 
or  agent  in  speaking  or  publishing  the  defamatory  words  was  act- 
ing in  accordance  with  the  express  or  implied  instructions  of  the 
defendant :  the  wrongful  act  then  becomes  the  master's  by  con- 
struction, being  the  servant's  in  fact. 

Where  the  instructions  are  express,  there  can  be  no  difficulty.  But  the 
inclination  of  our  Courts  has  of  late  years  been  not  to  press  the  doctrine 
of  implied  authority  so  far  as  was  done  in  older  cases.  However,  it  is  clear 
law  that  the  proprietor  of  a  newspaper  is  both  civilly  and  criminally  re- 
sponsible for  whatever  appears  in  its  columns,  although  the  publication  may 
have  been  made  without  his  knowledge,  and  in  his  absence.     For  he  must 

1  Ter  cur.  in  Sands,  qui  tarn,  &c.,  v.  Child  and  others  (1693),  3  Lev.  352. 
'^  Merryweather  1;.  Ni.xan,  2  Sm.  Lg.  Cases  (8th  Edu.),  546 ;  8  T.  E.  186. 
8  Shackcll  V.  Rosier,  2  Biug.  N.  C.  634 ;  3  Sc.  59. 

317 


*360  THE   LAW   OF   TEESONS. 

be  taken  to  have  ordered  his  servants  to  print  and  sell  whatever  manuscript 
the  editor  might  send  them  for  that  purpose.  The  proprietor  trusts  to  the 
discretion  of  the  editor  to  exclude  all  that  is  libellous ;  if  the  editor  fails 
in  this  duty,  still  the  paper  will  be  printed  and  published  by  the  proprie- 
tor's servants,  by  virtue  of  his  general  orders.  So  if  a  master-printer  has 
contracted  to  print  a  monthly  magazine,  he  Avill  be  liable  for  any  libel  that 
may  appear  in  any  number  printed  at  his  office.  So  every  bookseller  must 
be  taken  to  have  told  his  shopmen  to  sell  whatever  books  or  pamphlets 
are  in  his  shop  for  sale ;  if  any  one  contain  libellous  matter,  the  bookseller 
is  [vrimd  facie  at  all  events)  liable  for  its  publication  by  his  servant  by  reason 

of  such  general  instructions.  But  where  a  master's  orders  are  such 
*  361    that  they  can  be  obeyed  without  any  *  illegality,  he  is  not  liable 

because  his  servant  chooses  to  carry  them  out  illegally  and  tor- 
tiously,  even  although  the  servant  honestly  believes  that  he  is  best  serving 
his  master's  interests  by  thus  executing  his  business. 

But  althongh  the  master  has  not  authorized  the  act  of  the  ser- 
vant, still  if  it  was  done  for  his  benefit  and  on  his  behalf,  he  may 
subsequently  ratify  it.  Omnis  ratihihitio  priori  mandato  cequi- 
paratur.  But  "  in  order  that  there  may  be  a  valid  ratification, 
there  must  be  both  a  knowledge  of  the  fact  to  be  ratified,  and  an 
intention  to  ratify  it."  ^  The  master  must  do  something  more 
than  merely  stand  by,  and  let  the  servant  act.  Non-intervention 
is  not  ratification.^ 

Illustrations. 

At  a  meeting  of  a  board  of  g\iardians,  at  which  reporters  were  present,  the  chairman 
made  a  statement  reflecting  on  the  plaintiff,  and  added  "  I  am  glad  gentlemen  of  the 
press  are  in  the  room,  and  I  hope  they  will  take  notice  of  it :  publicity  should  be  given 
to  the  matter."  A  report  accordingly  appeared  in  two  local  papers.  Held  by  the 
majority  of  the  Exchequer  Chamber  (three  judges  against  two)  that  there  was  some 
evidence  to  go  to  the  jury  that  the  defendant  had  expressly  authorized  the  publication 
of  the  alleged  libel  in  the  newspapers.  Parkes  v.  Prescott  &,  another,  L.  R.  4  Ex.  169; 
38  L.  J.  Ex.  105  ;  17  W.  R.  773  ;  20  L.  T.  537.  See  also  R.  v.  Cooper,  8  Q.  B.  533  ; 
15  L.  J.  Q.  B.  206 ;  Tarpley  v.  Blabey,  2  Bing.  N.  C.  437  ;  2  Scott,  642 ;  1 
Hodges,  414. 

The  defendant's  daughter,  a  minor,  was  authorized  to  make  out  his  bills  and  write 
his  general  business  letters  :  she  chose  to  insert  libellous  matter  in  one  letter.  The 
father  was  held  not  liable  for  the  wrongful  act  of  his  daughter,  in  the  absence  of  any 
direct  instructions.  Harding  v.  Greening,  8  Taunt.  42  ;  1  Moore,  477  ;  1  Holt,  N.  P, 
631.     See  Moon  v.  Towers,  8  C.  B.  N.  S.  Gil. 

1  Per  Keating,  J.,  in  Edwards  v.  London  &  N.  W.  Ry.  Co.,  L.  R.  5  C.  P.  449. 

2  Moon  V.  Towers,  8  C.  B.  N.  S.  Gil  ;  "Weston  v.  Beeman  and  another,  27  L.  J. 
Ex.  57. 

818 


PUBLICATION   BY  SEEVANT.  *  361 

The  defendant  Moyes  regularly  printed  Eraser's  Magazine  ;  but  had  nothing 
to  do  with  preparing  the  illustrations.  One  number  contained  a  libellous  *  lith-  *  362 
ographic  print.  The  defendant,  the  printer,  was  held  liable  for  this  print, 
though  he  had  never  seen  it  ;  because  it  was  referred  to  in  a  part  of  the  accompanying 
letterpress,  which  had  been  printed  by  his  servants.  A  rule  on  this  point  was  refused. 
The  editor  was  of  course  liable  also.  Watts  v.  Fraser  &  Moyes,  7  0.  &  P.  369  ;  7 
A.  &  E.  223  ;  1  Jur.  671  ;  1  M.  &  Rob.  449  ;  2  N.  &  P.  157  ;  W.  W.  &  D.  4.^1. 

The  pro[)rietor  of  a  newspaper  will  be  held  liable  for  an  accidental  slip  made  by  his 
printer's  man  in  setting  up  the  type.  Shepheard  v.  Whitaker,  L.  R.  10  C.  P.  502  ; 
o2  L.  T.  402.  And  for  a  libellous  advertisement  inserted  by  the  editor  without  his 
knowledge.     Harrison  v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T.  (Old  S.)  298. 

The  i)roprietor  of  a  newspaper  in  America  on  going  away  for  a  holiday  expressly 
instructed  his  acting  editor  to  publish  nothing  exceptionable,  personal  or  abusive,  and 
warned  him  especially  to  scan  veiy  particularly  any  article  brought  in  by  B.,  who  was 
known  to  be  a  "smart"  writer.  The  editor  permitted  an  article  of  B.'s  to  appear 
which  contained  libellous  matter.  The  proprietor  was  held  liable  though  the  publica- 
tion was  made  in  his  absence  and  without  his  knowledge.  Dunn  v.  Hall,  1  Carter 
(Indiana),  345  ;  1  Smith,  2S8 ;  Huff  v.  Bennett,  4  Sand.  (New  York)  120  ;  Curtis  v. 
Mussey,  6  Gray  (Mass.),  261  ;  Andres  v.  Wells,  7  Johns.  (Xew  York)  260. 

A  master  or  principal  is  criminally  liable  for  any  libel  published 
by  his  servant  or  agent  with  his  authority  or  consent.  At  com- 
mon law  he  is  even  criminally  liable  for  such  libel,  although  he 
had  no  knowledge  of  what  his  servant  was  doing,  if  his  servant 
was  acting  in  pursuance  of  general  orders.  Thus,  whenever  an 
employer  is  civilly  liable  for  a  libel  published  by  his  servants,  he 
is,  apart  from  Lord  Campbell's  Act,  criminally  liable  also.  In- 
deed, in  Parkes  v.  Prescott  and  another,^  Byles,  J.,  asserts  that 
the  criminal  liability  of  the  master  may  be  more  extensive  than 
his  civil  liability:  —  "There  is  a  great  distinction  between  the 
authority  which  will  make  a  man  liable  criminally  and  the 
authority  which  will  make  him  liable  civilly.  A  principal  is  not 
civilly  liable  for  the  acts  of  his  agent,  unless  the  agent's 
authority  be  by  the  agent  duly  pursued  ;  *  but  the  princi-  *  363 
pal  may  be  criminally  liable  though  the  agent  have  devi- 
ated very  widely  from  his  authority."  And  the  learned  Judge, 
while  approving  of  R.  v.  Cooper,^  as  a  decision  in  criminal  law, 
refused  to  follow  it  as  any  authority  in  a  civil  case.  But  this 
view  was  not  adopted  b}^  the  rest  of  the  Court. 

The  criminal  liability  of  a  master  or  principal  for  a  libel  pub- 
lished by  his  servant  or  agent  without  his  knowledge  or  consent 
is  now  defined  by  s.  7  of  Lord  Campbell's  Act,^  by  which  it  is 

1  Exch.  Ch.  L.  R.  4  Ex.  169  ;  38  L.  J.  Ex.  105  ;  17  W.  R.  773  ;  20  L.  T.  537. 
2  8  Q.  B.  533  ;  15  L.  J.  Q.  B.  206.  »  6  &  7  Vict.  c.  96. 

319 


*-363  THE  LAW   OF  PERSONS. 

enacted  "  that  whensoever,  upon  the  trial  of  any  indictment  or 
information  for  the  publication  of  a  libel,  under  the  plea  of  '  Not 
Guilty,'  evidence  shall  have  been  given  wliich  shall  establish  a 
presumptive  case  of  publication  against  the  defendant  by  the  act 
of  any  other  person  by  his  authority,  it  shall  be  competent  to 
such  defendant  to  prove  that  such  publication  was  made  without 
his  authority,  consent,  or  knowledge,  and  that  the  said  publica- 
tion did  not  arise  from  want  of  due  care  or  caution  on  his  part." 
This  enactment  applies  only  to  criminal  cases,  and  it  may  be 
questioned  whether  it  altered  or  only  declared,  the  existing 
criminal  law.^  The  only  reported  case  on  this  section  is  R.  v. 
Holbrook  and  others.^ 

lUustrations. 

The  defendant  kept  a  pamplilet-shop  :  slie  was  sick  and  upstairs  in  bed  :  a  libel 
was  brought  into  the  shop  without  her  knowledge,  and  subsequently  sold  by  her  ser- 
vant on  her  account.  She  was  held  criminally  liable  for  the  act  of  her  servant,  on  the 
ground  that  "the  law  presumes  that  the  master  is  acquainted  with  what  his  servant 
does  in  the  course  of  his  business."     R.  v.  Dodd,  2  Sess.  Cas.  33  ;  Nutt's  Case,  Fitzg. 

47  ;  Barnard.  K.  B.  306. 
*  364  *  But  I  doubt  if  later  judges  would  have  been  quite  so  strict  :  the  sickness 

upstairs  would  surely  have  been  held  an  excuse,  even  before  the  6  &  7  Vict. 
c.  96,  s.  7,  became  law.     See  R.  v.  Almon,  5  Burr.  2686. 

A  libel  was  published  iu  a  London  newspaper,  The  Morning  Journal.  At  the  time 
of  publication,  Mr.  Gutcli,  one  of  the  proprietors,  was  away  ill  in  "Worcestershire,  in 
no  way  iuterfering  with  the  conduct  of  the  paper,  which  was  managed  entirely  by 
Alexander.  Lord  Tenterden  directed  the  jury  to  find  Gutch  guilty,  on  the  ground 
that  it  was  on  his  capital  that  the  paper  was  carried  on,  that  he  derived  profit  from  its 
sale,  and  he  had  selected  the  editor  who  had  actually  inserted  the  libel.  Lord  Tenter- 
den the  next  day  admitted  (p.  438)  that  some  possible  case  might  occur  in  which  the 
proprietor  of  a  newspaper  might  be  held  not  criminally  answerable  for  a  libel  which 
had  appeared  in  it.  Gutch  was  convicted,  but  subsequently  discharged  on  his  own 
recognizances.  R.  v.  Gutch,  Fisher  &  Alexander,  Moo.  &  Mai.  433  ;  R.  v.  "Walter,  3 
Esp.  21.     And  see  Attorney-General  v.  Siddou,  1  Or.  &  J.  220. 

The  defendants  were  the  proprietors  of  the  Portsmouth  Times  and  Naval  Gazette  ; 
each  of  them  managed  a  diflferent  department  of  the  newspaper,  but  the  duty  of  editing 
what  was  called  the  literary  department  was  left  by  them  entirely  to  an  editor  whom 
they  had  appointed,  named  Green.  The  libel  in  question  was  inserted  in  the  paper  by 
Green  without  the  express  authority,  consent,  or  knowledge  of  the  defendants.  At 
the  trial  of  a  criminal  information  the  judge  directed  a  verdict  of  guilty  against  the 
defendants.  Held,  by  Cockburn,  C.J.,  and  Lush,  J.,  that  there  must  be  a  new  trial, 
for  upon  the  true  construction  of  6  &  7  Vict.  c.  96,  s.  7,  the  libel  was  published  with- 
out the  defendants'  authority,  consent,  or  knowledge,  and  it  was  a  question  for  the 

1  See  R.  V.  Almon,  5  Burr.  2686. 

2  3  Q.  B.  D.  60  ;  47  L.  J.  Q.  B.  35  ;  26  W.  R.  144  ;  37  L.  T.  530  ;  13  Cox,  C.  C. 
650  ;  4  Q.  B.  D.  42  ;  48  L.  J.  Q.  B.  113  ;  27  "W.  R.  313  ;  39  L.  T.  536  ;  14  Cox, 
C.  C.  185. 

320 


PARTNERS.  *  364 

jury  whether  the  publication  arose  from  any  want  of  due  care  and  caution  on  their 
part.  By  Mellor,  J.,  dissenting,  that  the  defendants,  having  for  their  own  benefit 
employed  an  editor  to  manage  a  particular  department  of  the  newspaper,  and  given 
him  full  discretion  as  to  the  articles  to  be  inserted  in  it,  must  be  taken  to  have  con- 
sented to  the  publication  of  the  libel  by  him :  that  6  &  7  Vict.  c.  96,  s.  7,  had  no 
application  to  the  facts  proved,  and  that  the  case  was  properly  withdrawn  from  the 
jury.  R.  V.  Holbrook  &  others,  3  Q.  B.  D.  60  ;  47  L.  J.  Q.  B.  35  ;  26  W.  K.  144  ; 
37  L.  T.  530  ;  13  Cox,  C.  C.  650. 

On  the  new  trial  Green  was  called  as  a  witness,  and  stated  that  he  had  general 
authority  to  conduct  the  paper,  that  the  defendants  left  it  entirely  to  his  discretion  to 
insert  what  he  pleased,  and  that  he  had  allowed  the  letter  complained  of  to  appear  in 
the  paper  without  the  knowledge  or  express  authority  of  the  defendants,  one  of  whom 
was  absent  from  Portsmouth  at  the  time.  The  jury  found  all  the  defendants  guilty. 
On  a  motion  for  a  new  trial  on  the  ground  that  the  verdict  was  against  evidence,  and 
of  misdirection.  Held  by  Cockburn,  C.J.,  and  Lush,  J.  (Mellor,  J.,  still  dissenting), 
that  the  general  authority  given  to  the  editor  was  not  j)er  sc  evidence  that  the 
defendants  had  authorized  or  consented  to  the  publication  *  of  the  libel,  *  365 
within  the  meaning  of  6  &  7  Vict.  c.  96,  s.  7,  and  that,  as  the  learned  judge 
at  the  trial  had  summed  up  in  terms  which  might  have  led  the  jury  to  suppose  that  it 
was,  and  the  jury  had  apparently  given  their  verdict  on  that  footing,  there  must  be 
another  new  trial.  R.  v.  Holbrook  and  others,  4  Q.  B.  D.  42 ;  48  L.  J.  Q.  B.  113  ; 
27  W.  R.  313  ;  39  L.  T.  536  ;  14  Cox,  C.  C.  185. 

The  prosecutor,  Mr.  John  Howard,  Clerk  of  the  Peace  for  the  borough  of  Ports- 
mouth, died  shortly  afterwards,  so  the  proceedings  dropped,  and  no  third  trial  ever 
took  place. 

9.  Partners. 

Partners  could  always  jointly  sue  for  a  libel  defamatory  of  the 
firm.^  But  in  such  an  action  no  damages  could  formerly  have 
been  given  for  any  private  injury  thereby  caused  to  any  individual 
partner ;  nor  for  the  injury  to  the  feelings  of  each  member  of  the 
firm.  Only  joint  damages  could  be  recovered  in  the  joint  action  ; 
for  the  basis  of  such  action  was  the  injury  to  their  joint  trade.^ 
But  now,  by  virtue  of  Order  XVIL,  r.  6,  "  claims  by  plaintiffs 
jointly  may  be  joined  with  claims  by  them  or  any  of  them  sepa- 
rately against  the  same  defendant."  And  see  Order  XVI.,  r.  1. 
Hence  it  is  no  longer  necessary  to  bring  two  actions  for  the  same 
words ;  each  individual  partner  may,  in  any  action  brought  by 
the  firm,  recover  separate  damages  for  any  special  injury  done  to 
himself,  if  properly  claimed  in  the  statement  of  claim,  the  firm  at 
the  same  time  recovering  their  joint  damages.^     If,  however,  one 

1  Ward  and  another  v.  Smith,  6  Bing.  749  ;  4  C.  &  P.  302  ;  Lc  Fanu  v.  Malcohnson, 
1  H.  L.  C.  637. 

'^  Haythorn  v.  Lawson,  3  C.  &  P.  196  ;  Robinson  v.  Marchant,  7  Q.  B.  918  ;  15  L. 
J.  Q.  B.  134. 

3  See  Booth  and  others  v.  Briscoe,  2  Q.  B.  D.  496  ;  25  AV.  R.  838,  post,  p.  370. 

21  321 


*  365  THE  LAW   OP   PERSONS. 

partner  be  defamed  as  to  his  private  life,  the  conduct  of  the  firm 
not  being  attacked  directly  or  indirectly,  nor  any  special  damage 
resulting  to  them  from  defendant's  words ;  then  the  individual 
partner  should,  of  course,  sue  alone. 

*  366        *  Partners  may  sue  or  be  sued  in  the  name  of  their  firm  ; 

but  any  other  party  to  the  action  may,  in  such  a  case,  apply 
by  summons  to  a  Master  at  Chambers  or  a  District  Registrar  for 
a  statement  of  the  names  of  the  partners  in  such  firm.^  And 
M'here  partners  are  suing  in  the  name  of  the  firm,  they  must,  on 
demand  in  writing  by  or  on  behalf  of  the  defendant,  disclose  the 
names  and  places  of  residence  of  all  the  persons  constituting  the 
firm ;  the  proceedings  nevertheless  continuing  in  the  name  of 
the  firm.  If  the  plaintiffs  or  their  solicitor  fail  to  compl}'-  with  such 
demand,  a  Master  at  Chambers  or  District  Registrar  will  stay  all 
proceedings.^  If  both  joint  and  several  damages  be  claimed,  the 
partners  should  sue  in  their  own  names,  either  with  or  without 
the  name  of  the  firm. 

If  a  partner  conducting  the  business  of  a  firm  causes  a  libel  to 
be  published  on  a  rival  firm,  the  firm  will  be  liable  as  well  as  the 
individual  partner.  So,  if  any  agent  or  servant  of  the  firm  de- 
fames any  one  by  the  express  direction  of  the  firm,  or  in  accord- 
ance with  the  general  orders  given  by  the  firm  for  the  conduct  of 
their  business.^  But  if  there  be  any  doubt  as  to  the  liability  of 
the  firm,  it  is  always  safer  to  join  the  individual  partner  or  agent 
or  servant  as  a  co-defendant  with  the  firm.*  "  Any  person  carry- 
ing on  business  in  the  name  of  a  firm  apparently  consisting  of 
more  than  one  person  may  be  sued  in  the  name  of  such  firm."  ^ 
AVhere  partners  are  sued  in  the  name  of  their  firm  they  must 
appear  individually  in  their  own  names.  But  all  subsequent 
proceedings  continue  in  the  name  of  the  firm.^  Where  judgment 
has  been  obtained  against  a  firm,  it  may  be  enforced  against 

*  367    the  property  either  of  the*  firm  or  of  any  one  proved  or 

admitted  to  be  a  partner.^ 

1  Order  XVI.,  r.  10.  2  Order  XVII. ,  r.  2. 

8  See  Master  and  Servant,  ante,  p.  360.  *  See  Order  XVI.,  r.  3. 

6  Order  XVI.,  r.  10  a.  6  Order  XII.,  rr.  12,  12a. 

7  Order  XLII.,  r.  8. 

322 


COEPOEATIONS.  *  367 


Illustrations. 


If  one  partner  be  libelled  in  his  private  capacity  he  cannot  recover  for  any  special 
damage  which  has  occuvred  to  the  business  of  the  firm.  All  the  partners  should  suo 
for  that  jointly.  They  may  now  do  so  in  the  same  action.  Solomons  and  others  v.  Me- 
dex,  1  Stark.  191 ;  Robinson  v.  Marchant,  7  Q-  B.  918;  15  L.  J.  Q.  B.  134  ;  10  Jur. 
156 ;  Cook  and  another  o.  Batchellor,  3  Bos.  &  Pul.  150  ;  Maitlandand  others  v.  Gold- 
ney  and  another,  2  East,  426. 

Similarly,  if  the  firm  be  libelled  as  a  body,  they  cannot  jointly  recover  for  any  pri- 
vate injury  to  a  single  partner  :  though  that  pai'tner  may  now  recover  his  individual 
damages  in  the  same  action.  Haythorn  v.  Lawson,  3  C.  &  P.  196  ;  Le  Fanu  v.  Mal- 
colmson,  1  H.  L.  C.  637  ;  13  L.  T.  61  ;  8  Ir.  L.  R.  418. 

But  if  insolvency  be  imputed  to  one  member  of  a  firm,  this  is  a  reflection  on  the 
credit  of  the  firm  as  well  :  therefore  either  he,  or  the  firm,  or  both  may  sue,  each  for 
their  own  damages.  Harrison  v.  Bevington,  8  C.  &  P.  708  ;  Foster  and  others  v.  Law- 
son,  3  Bing.  452  ;  11  Moore,  360. 

10.  Corporations  and   Compaviies. 

A  corporation  may  sue  for  any  libel  upon  it,  as  distinct  from  a 
libel  upon  its  individual  members,  (a)  It  may  also  sue  for  a 
slander  upon  it  in  the  way  of  its  business  or  trade.  If,  however, 
the  corporation  be  not  engaged  in  any  business,  it  would  probably 
be  necessary  to  prove  special  damage  in  any  case  of  slander. 

A  corporation  "  could  not  sue  in  respect  of  an  imputation  of 
murder,  or  incest  or  adultery,  because  it  could  not  commit  those 
crimes.  Nor  could  it  sue  in  respect  of  a  charge  of  corruption  ; 
for  a  corporation  cannot  be  guilty  of  corruption,  although  the 
individuals  composing  it  may  be."  ^ 

The  law  is  the  same  with  regard  to  unincorporated  trading 
companies,  which  may  sue  for  libel  in  the  manner  *  di-    *  368 
rected  by  the  special  Act  creating  them,  or  any  statute  ap- 
plicable to  them. 2 

Corporations  and  companies  may  maintain  actions  for  slander 
of  their  title  ;  whether  the  slander  be  uttered  by  one  of  their  own 
members  or  by  a  stranger.^ 

1  Per  Pollock,  C.B.,  4  H.  &  N.  90. 

2  Williams  v.  Beaumont,  10  Bing.  260 ;  3  M.  &  Scott,  705. 

8  Metropolitan  Omnibus  Co.  v.  Hawkins,  4  H.  &  N.  87  ;  28  L.  J.  Ex.  201 ;  5  Jur. 
N.  S.  226  ;  7  W.  R.  265  ;  32  L.  T.  (Old  S.)  281  ;  Trenton  Insurance  Co.  v.  Perrine, 
8  Zab.  (New  Jersey),  402. 

(a)  HahnemannianLifelns.Co.'U.Beebe,  upon  a  corporation,  and  this  without  alleg- 
48  111.  87  ;  Kuickerbocker  Life  Ins.  Co.  v.  ing  injury  to  it.  State  v.  Boogher,  3  Mo. 
Ecclesine,  6  Abb.  Pr.  N.  S.  9  ;  Brennan  App.  442  ;  State  v.  Atchison,  3  Lea,  729  ; 
V.  Tracy,  1  Mo.  App.  540.  So  too  a  crim-  Phannaoeutical  Soc.  v.  London  Supply  As- 
inal  prosecution  may  be  instituted  for  libel     soc,  5  App.  Cas.  869,  870  ;  note  3,  next  p. 

323 


*  368  THE  LAW   OF  PERSONS. 

A  corporation  will  not,  it  is  submitted,  be  liable  for  any  slan- 
der uttered  by  an  officer,  even  though  he  be  acting  honestly  for 
the  benefit  of  the  company  and  within  the  scope  of  his  duties, 
unless  it  can  be  proved  that  the  corporation  expressly  ordered 
and  directed  that  officer  to  say  those  very  words :  for  a  slander  is 
the  voluntary  and  tortious  act  of  the  speaker. 

A  corporation  will  be  liable  to  an  action  for  a  libel  published 
by  its  servants  or  agents,  whenever  such  publication  comes  with- 
in the  scope  of  the  general  duties  of  such  servants  or  agents,  or 
whenever  the  corporation  has  expressly  authorized  or  directed 
such  publication.^  (a) 

Whether  a  corporation  can  be  guilty  of  express  malice,  so  as  to 
destroy  a  primdfacie  privilege  arising  from  the  occasion  of  publi- 
cation has  not  yet  been  decided  ;  but  semble,^  it  can. 

*  369        *  A  corporation  can  be  indicted  for  libel  and  fined.^ 

Illustratio7is. 

A  joint-stock  company  incorporated  under  the  19  &  20  Vict.  c.  47,  may  sue  in  its 
own  cor[)orate  name  for  words  imputing  to  it  insolvency,  dishonesty,  and  mismanage- 
ment of  its  affairs,  and  this  although  the  defendant  be  one  of  its  own  shareholders. 
Metropolitan  Omnibus  Co.  r.  Hawkins,  4  H.  &  N.  87  ;  28  L.  J.  Ex.  201 ;  5  Jur. 
N.  S.  226  ;  7  W.  R.  265  ;  32  L.  T.  (Old  S.)  281. 

Where,  before  the  19  &  20  Vict.  c.  47,  a  joint-stock  insurance  company  though  not 
incorporated,  was  authorized  by  statute  to  sue  in  the  name  of  its  chairman,  it  was  held 
that  the  chairman  might  bring  an  action  for  a  libel  which  attacked  the  mode  in  wliich 
the  company  earned  on  its  business.     Williams  v.  Beaumont,  10  Bing.  260  ;  3  il.  & 

Scott,  705. 

A  railway  company  was  held  liable  for  transmitting  a  telegram  to  the  effect  that 
the  plaintiffs  bank  had  stopped  payment.  Whitfield  &  others  v.  South  Eastern 
Railway  Co.,  E.  B.  &  E.  115  ;  27  L.  J.  Q.  B.  229  ;  4  Jur.  N.  S.  688. 

1  See  ante,  Master  and  Servant,  p.  360  ;  Yarborough  v.  Bank  of  England,  16  East, 
6  ;  Latimer  v.  Western  Morning  News  Co.,  25  L.  T.  44  ;  Alexander  v.  N.  E.  Ry.  Co., 
6  B  &  S.  340  ;  34  L.  J.  Q.  B.  152  ;  11  Jur.  N.  S.  619  ;  Lawless  v.  Anglo- Egyptian 
Cotton  Co.,  L.  R.  4  Q.  B.  262  ;  10  B.  &  S.  226  ;  38  L.  J.  Q.  B.  129;  17  W.  R.  498. 
And  in  America,  Aldrich  v.  Press  Printing  Co.,  9  Min.  133. 

2  Per  Lord  Campbell,  C.J.,  E.  B.  &  E.  121  ;  27  L.  J.  Q.  B.  231. 

8  Per  Lord  Blackburn  in  Pharmaceutical  Society  v.  London  and  Provincial  Supply 
Association,  5  App.  Cas.  869,  870  ;  49  L.  J.  Q.  B.  742  ;  28  W.  R.  960  ;  43  L.  T.  389  ; 
dissenting  from  the  remarks  of  Bramwell,  L.J.,  in  the  Court  below,  5  Q.  B.  D.  313 ; 
49  L.  J.  Q.  B.  338  ;  28  W.  R.  608  ;  42  L.  T.  569. 

(a)  Majmard  i>.  Fireman's  Ins.  Co.,  47  Carter  v.   Howe    Machine   Co.,    51    Md. 

Cal.  207  ;  Johnson  v.  St.  Louis  Despatch  290  ;    Howe   Machine  Co.  v.   Souder,   53 

Co.,  1  Mo.  App.  565  ;  s.  c.  65  Mo.  539  ;  Ga.  64. 
324 


JOINT  PLAINTIFFS.  *  369 

11.    Other  Joint  Plaintiffs. 

"  All  persons  may  be  joined  as  plaintiffs  in  whom  the  right  to 
any  relief  claimed  is  alleged  to  exist,  whetiier  jointly,  severally, 
or  in  the  alternative.  And  judgment  may  be  given  for  sucli  one 
or  more  of  the  plaintiffs  as  may  be  found  to  be  entitled  to  relief, 
for  such  relief  as  he  or  they  may  be  entitled  to,  without  any 
amendment.  But  the  defendant,  though  unsuccessful,  shall  be 
entitled  to  his  costs  occasioned  by  so  joining  any  person  or  per- 
sons who  shall  not  be  found  entitled  to  relief,  unless  the 
Court  in  disposing  of  the  costs  of  the  action  shall  *  other-  *  370 
wise  direct."  ^ 

By  virtue  of  this  rule,  an  action  of  libel  or  slander  may  now 
be  brought  by  two  or  more  persons  jointly,  although  they  are 
not  in  partnership  or  otherwise  jointly  interested,  (a)  Barratt  v. 
Collins  ^  must  be  considered  overruled.  The  damages  in  such  an 
action  ought  to  be  claimed  and  assessed  separately ;  but  if  they 
be  assessed  jointly,  and  the  plaintiffs  be  content  with  such  a  ver- 
dict, the  defendant  cannot  avail  himself  of  the  defect.-'^ 

The  defendant  may  counter-claim  separately  against  such  joint 
plaintiffs,  if  the  counter-claims  can  be  conveniently  disposed  of 
in  the  same  action  with  the  plaintiff's  claim. ^ 

Illustrations. 

A  charity  near  "Wisbeach  was  managed  by  a  body  of  trnstees,  eight  in  number.  A 
libellous  letter  was  published  in  the  IFisbeach  Chronicle,  imjiuting  to  the  trustees  mis- 
conduct in  the  management  of  the  funds  of  the  charity.  The  eight  trustees  sued  the 
proprietor  of  the  paper  in  one  joint  action  for  the  libel.  Held,  that  they  were  empow- 
ered so  to  do  by  Order  XVI.,  r.  1  ;  although  before  the  Judicature  Act,  it  would  never 
have  been  allowed.  The  jury  having  returned  a  single  verdict  for  the  plaintiffs,  dam- 
ages 40s.,  the  Court  of  Appeal  refused,  on  the  motion  of  the  defendant,  to  disturb  the 
verdict.     Booth  &  others  v.  Briscoe,  2  Q.  B.  D.  496  ;  25  W.  R.  838. 

Two  co-pro])rietors  of  a  newspaper  may  sue  jointly  for  a  libel  on  their  paper  without 
proving  special  damage  ;  and  the  jury  may  find  the  damages  generally,  liussell  and 
another  v.  Webster,  23  W.  R.  59. 

1  Order  XVI.,  r.  1.     Cf.  C.  L.  P.  Act,  1860,  s.  19.  2  jq  Moo.  451. 

'  Booth  and  others  v.  Briscoe,  2  Q.  B.  D.  496  ;  25  W.  R.  838. 
4  Manciiester,  &c.,  Ry.  Co.  and  L.  &  N.  W.  Ry.  Co.  v.  Brooks,  2  Ex.  D.  243  ;  46 
L.  J.  Ex.  244  ;  25  W.  R.  413 ;  36  L.  T.  103. 

(a)  Probably  not  in  this  country.    Hiukle  v.  Davenport,  38  Iowa,  355. 

325 


THE   LAW   OF   PERSONS. 


12.  Joint  Defendants. 

"  All  persons  may  be  joined  as  defendants  against  whom 
*  371  the  right  to  any  relief  is  alleged  to  exist,  *  whether  jointly, 
severally,  or  in  the  alternative.  And  judgment  may  be 
given  against  such  one  or  more  of  the  defendants  as  may  be  found 
to  be  liable,  according  to  their  re!?pective  liabilities,  v/ithout  any 
amendment."  ^ 

"  Where  in  any  action,  whether  founded  upon  contract  or 
otherwise,  the  plaintiff  is  in  doubt  as  to  the  person  from  whom 
he  is  entitled  to  redress,  he  may  join  two  or  more  defendants,  to 
the  intent  that  in  such  action  the  question  as  to  which,  if  any, 
of  the  defendants  is  liable,  and  to  what  extent,  may  be  deter- 
mined as  between  all  parties  to  the  action."  ^  Though  here,  of 
course,  the  plaintiff  will  have  to  pay  the  costs  of  the  defendant 
who  proves  not  liable,  unless  such  defendant  has  colluded  with 
the  other  defendant  found  to  be  liable,  or  has  otherwise  been 
guilty  of  misconduct. 

''  It  shall  not  be  necessary  that  every  defendant  to  any  action 
shall  be  interested  as  to  all  the  relief  thereby  prayed  fur,  or  as  to 
every  cause  of  action  included  therein  ;  but  the  Court  or  a  Judge 
may  make  such  order  as  may  appear  just  to  prevent  any  defend- 
ant from  being  embarrassed  or  put  to  expense  by  being  required 
to  attend  any  proceedings  in  such  action  in  which  he  may  have 
no  interest."  ^ 

Under  these  rules  a  joint  action  can  now  be  maintained  against 
two  or  more  persons  for  slander.  Formerly  this  was  impossi- 
ble.* (a)  Even  if  husband  and  wife  uttered  similar  words  simul- 
taneously, there  were  two  separate  publications,  and  an  action 
had  to  be  brought  against  the  husband  alone  for  what  he 
said,  against  both  husband  and  wife  for  her  words.^  {b) 

1  Order  XVI.,  r.  3.  »  Order  XVI.,  r.  6.  ^  Order  XVI.,  r.  4. 

4  Chamberlain  v.  White,  Cro.  Jac.  647  ;  s.  c.  siib  nomine  Chaiuberlaiue  v.  Will- 
more,  Palm.  313. 

s  Burcher  v.  Orchard  ct  ux.  (1652),  Style,  349,  ante,  p.  351 ;  Swithin  ct  ux.  v. 
Vinceut  ct  ux.  (1764),  2  Wils.  227  ;  and  in  America,  Tait  v.  Culbertson,  57  Barb.  9. 


(a)  See  Woods  v.  Pangbum,  75  N.  Y 
495  ;  Thomas  v.  Runisey,  6  Johns.  31 
Girand  v.  Beach,  3  E.  D.  Smith,  337 
Cooper  V.  Weed,  2  How.  Pr.  40  ;  Glass  v. 
Stewart,  10  Serg.  &  K.  222  ;  Webb  v.  Ce 
326 


oil,  9  B.  Mon.  198.  A  joint  action  for 
libel  may  be  maintained  against  several. 
Webb  V.  Cecil. 

(I)  See  Pentei-s  v.  England,  1  McCord, 
14. 


JOINT  DEFENDANTS.  *  372 

*  But  with  libel  it  was  different ;  the  publication  of  a  *  372 
libel  might  well  be  the  joint  act  of  two  or  more  persons, 
who  might  in  such  a  case  be  sued  either  jointly  or  separately  at 
the  election  of  the  plaintiff.  Thus,  if  a  husband  and  wife  jointly 
publish  a  libel,  they  might  always  have  been  jointly  sued.i  If, 
however,  plaintiff  prefers  to  sue  only  one  defendant  when  he 
might  have  sued  others  also,  the  one  defendant  sued  cannot 
recover  any  share  of  damages  or  costs  from  the  others,  who  might 
have  been,  but  are  not,  sued.^ 

Joint  defendants  may  counter-claim  jointly  or  separately,  or 
one  may  do  so  alone,  against  the  plaintiffs  jointly,  or  against  one 
plaintiff  separately,  or  against  one  plaintiff  and  a  third  party .^ 

Illustration. 

The  members  of  the  committee  of  the  Refonn  Union  were  held  jointly  liable  for 
publishing  a  report  charging  the  plaintiff  and  others  by  name  with  bribery  at  the 
Berwick  election.     Wilson  v.  Reed  and  others,  2  F.  &  F.  149. 

1  Catterall  v.  Kenyon,  3  Q.  B.  310  ;  Keyworth  v.  Hill,  3  B.  &  Aid.  685. 

2  Colburn  v.  Patmore,  1  C.  M.  &  R.  73  ;  4  T>t.  677  ;  Merryweather  v.  Nixan, 
8  T.  R.  186  ;  2  Sm.  L.  C.  546  ;  Moscati  v.  Lawson,  7  C.  &  P.  32. 

3  See  Appendix  C.  to  Judicature  Act,  1875,  Forms  of  Pleadings,  No.  14,  Statement 
of  Defence  and  Counter-claim  in  an  action  of  Foreclosure.  Such  a  counter-claim  will 
however  be,  of  course,  subject  to  the  provisions  of  Order  XIX.,  r.  3,  and  Order  XXII., 
r.  9,  if  it  cannot  be  conveniently  disposed  of  in  the  pending  action. 

327 


*373  *  CHAPTER  XIII. 

CRIMIKAL  LAW. 

Our  attention  hitherto  has  been  chiefly  directed  to  the  civil 
action  for  libel  or  slander,  whereby  the  person  defamed  seeks  such 
compensation  as  damages  can  afford  for  the  injury  done  him  by  the 
defendant's  words.  Bat  in  all  libels,  and  in  some  cases  of  spoken 
words,  the  State  is  also  concerned,  and  interferes  to  punish  the 
defendant  as  an  offender  against  the  criminal  law.  (a)  The  evil 
done  by  some  libels  is  so  extensive,  the  example  set  so  pernicious, 
tliat  it  is  desirable  that  tliey  should  be  repressed  for  the  public 
good.  Slanders  do  less  mischief  as  a  rule,  are  not  permanent, 
and  are  more  easily  forgotten  ;  their  evil  influence  is  not  so  widely 
diffused.  As  a  rule,  therefore,  no  spoken  words  are  treated  as  a 
crime.  Another  reason  often  assigned  for  the  interference  of  the 
State  is,  that  libels  conduce  to  a  breach  of  the  peace ;  but  that 
reason  would,  I  think,  apply  with  equal,  if  not  greater  force,  to 
slanders. 

Criminal  proceedings  for  libel  may  be  taken  either  at  common 
law,  or  under  certain  statutes  ;  the  remedy  may  be  either  by  in- 
dictment or  hiformation ;  though  informations  are  only  granted 
in  urgent  cases,  where  the  pubUcation  of  the  libel  is  likely,  to 
produce  great  public  mischief  and  must  therefore  be  promptly 
suppressed. 

The  fact  that  libel  is  a  crime  as  well  as  a  tort,  produces  other 

*  374    *  consequences  in  law  which  it  may  be  weU  to  briefly  notice  here, 

thou"-h  they  are  not  strictly  within  the  scope  of  the  present  treatise. 

No  action  can  be  maintained  for  the  price  of  Hbellous  pictures,^  or  for 

their  value,  if  destroyed  by  the  person  ridiculed.^    A  printer  cannot  recover 

1  Fores  v.  Johnes,  4  Esp.  97.  '^  Du  Bost  v.  Beresford,  2  Camp.  511. 

(a)  See  e.g.  State  v.  Avery,  7   Conn.  White,  6  Ired.  418  ;  State  v.  Henderson, 

266  ;  Commonwealths.  Chapman,  13  Met.  1  Kich.  179  ;  Gilbert  v.  People,  1  Denio, 

68  ; '  State    v.   Burnham,    9   N.    H.    34  ;  41  ;  Commonwealth  v.  Sweuey,  10  Serg. 

Hodges  V.  State,  5  Humph.  112  ;  State  v.  &  R.  173. 
328 


INDICTMENT.  *  374 

for  printing  a  libel.^  If  a  printer  undertakes  to  print  a  book  for  a  certain 
price,  and  discovers  as  the  work  proceeds  that  the  matter  is  defamatory,  he 
may  decline  to  continue  the  work,  and  can  recover  for  the  part  of  the  work 
which  is  not  defematory  in  an  action  for  work  and  labor  done  and  materi- 
als provided,  the  special  contract  notwithstanding. '^  Nor  can  an  action  be 
maintained  for  breach  of  a  contract  to  furnish  manuscript  of  defamatory 
matter,'  or  of  a  contract  to  let  rooms  to  be  used  for  the  delivery  of  blas- 
phemous lectures,*  or  for  pirating  a  libellous  book.°  There  is  no  copyright 
in  any  libellous  or  immoral  book,  or  picture.  A  Court  of  Equity  will  not 
interfere  in  one  way  or  another.  It  will  not  grant  an  injunction  to  restrain 
a  piracy  of  an  illegal  book  or  picture,  nor  decree  an  account  of  the  profits 
made  thereby.® 

No  contract  will  be  implied  to  indemnify  a  party  against  the  conse- 
quences of  an  illegal  act,  such  as  the  publication  of  a  libel.''  And  semble 
the  proprietor  of  a  newspaper  convicted  and  fined  for  the  publication  of  a 
libel  which  was  inserted  in  his  paper  without  his  knowledge  or  consent  by 
the  editor,  has  no  right  of  action  against  the  editor  for  the  damages  sustained 
through  such  conviction.*  Even  an  express  promise  to  indemnify  another 
if  he  will  publish  a  libel  is  void;^  for  it  is  a  promise  on  an  illegal  execu- 
tory consideration,  an  incitement  to  do  an  illegal  act.  But  it  has 
been  decided  in  America  that  *  an  express  promise  to  indemnify  *  375 
another  against  the  consequences  of  an  illegal  act  already  done  is 
binding.^" 

I.   Criminal  Remedy  hy  Indictment. 

It  is  a  misdemeanor  at  common  law,  punishable  on  indictment 
with  fine  and  imprisonment,  to  sj)eak  any  blasphemous,  obscene, 
or  seditious  words  in  the  hearing  of  others.  A  fortiori^  it  is  such 
misdemeanor  to  write  and  publish  blasphemous,  obscene,  or  sedi- 
tious words. 

It  is  a  misdemeanor  at  common  law,  punishable  on  indictment 

1  Poplett  V.  Stockdale,  Ry.  &  M.  337  ;  Bull  v.  Chapman,  8  Ex.  104. 

2  Clay  V.  Yates,  1  H.  &  N.  73 ;  25  L.  J.  Ex.  237  ;  4  W.  R.  557  ;  27  L.  T.  (Old 
S.)  126.  8  Gale  v.  Leckie,  2  Stark.  107. 

*  Cowan  V.  Milboum,  L.  R.  2  Ex.  230  ;  36  L.  J.  Ex.  124  ;  15  W.  R.  750  ;  16  L.  T. 
290. 

6  Stockdale  v.  Onwhyn,  5  B.  &  C.  173  ;  7  D.  &  R.  625  ;  2  C.  &  P.  163. 

^  Per  Lord  Eldon,  in  Walcot  v.  Walker,  7  Ves.  1  ;  in  Southey  v.  Sherwood,  2  Mer. 
435,  and  in  Lawrence  v.  Smith,  Jacob,  471. 

7  Shackell  v.  Rosier,  3  So.  59  ;  2  Bing.  N.  C.  634. 

8  Colburn  v.  Patmore,  1  C.  M.  &  R.  73  ;  4  Tyr.  677. 

9  Arnold  v.  Clifford,  2  Sumner,  238. 

10  Griffiths  v.  Hardenburgh,  41  N.  Y.  469 ;  Howe  v.  Buffalo  &  Erie  RaU.  Co.,  38 
Barbour  (N.  Y.),  124. 

329 


*375  CREVIINAL   LAW. 

with  fine  and  imprisonment,  to  write  and  publish  defamatory 
words  of  any  living  person ;  or  exhibit  any  picture  or  effigy  de- 
famatory of  him. 

It  is  not  a  crime  merely  to  speak  such  words,  however  mali- 
ciously. 

Whatever  words  would  be  deemed  defamatory  of  a  living  per- 
son in  any  civil  action  will  be  held  a  libel  on  the  trial  of  an  in- 
dictment. All  the  rules  laid  down  in  Chapters  IL,  III.,  VIII., 
'IX.,  as  to  Bond  Fide  Comment,  Construction  and  Certainty, 
Privilege,  and  Malice,  apply  equally  to  civil  and  criminal  pro- 
ceedings. 

But  a  libel  on  a  thing  is  no  crime  ;  and  wherever  no  action 
would  lie  without  proof  of  special  damage,  clearly  uo  indictment 
can  be  preferred. 

It  will  be  an  aggravation  of  the  offence,  if  the  person  libelled 
be  a  foreign  prince,  statesman  or  ambassador  ;  for  such  a  libel 
would  embarrass  the  government,  and  might  disturb  the  friendly 
relations  between  England  and  that  foreign  country.^ 

It  is  a  misdemeanor  at  common  law,  punishable  on  indictment 

with  fine  and  imprisonment,  to  write  and  publish  defama- 

*  376    tory  words  of  any  person  deceased  ;  (a)  *  provided  it  be 

alleged  and  proved  that  this  was  done  with  intent  to  bring 

contempt  and  scandal  on  his  family  and  relations  and  provoke 

them  to  a  breach  of  the  peace.^ 

It  will  also  be  such  misdemeanor  to  libel  any  sect,  company  or 
class  of  men,  without  mentioning  any  person  in  particular  ;  pro- 
vided it  be  alleged  and  proved  that  such  libel  tends  to  excite 
the  hatred  of  the  people  against  all  belonging  to  such  sect  or  class, 
and  conduces  to  a  breach  of  the  peace.^ 

Such  intention  may  sufficiently  appear  from  the  words  of  the 
libel  itself,  or  it  may  be  proved  by  the  consequences  that  have 
followed  from  its  publication. 

The  criminal  remedy  for  libel,  as  it  is  the  earlier,  so  it  is  the  more  ex- 
tensive remedy;  a  libel  may  be  indictable,  though  it  be  not  actionable. 
Thus  in  neither  of  the  above  cases  would  an  action  lie,  for  want  of  a  proper 
plaintiff.4 

1  See  post,  p.  383. 

2  Hawkins,  P.C.,  i.  58  ;  5  Rep.  125  «  ;  R,  v.  Topham,  4  T.  R.  129. 

8  R.  V.  Gathercole,  2  Lewin,  C.  C.  254.  *  And  see  R.  v.  Darby,3  Mod.  139. 

{(■■)  More  V.  Bennett,  48  N.  Y.  472  ;  Commonwealth  v.  Clap,  4  Mass.  163,  168. 

330 


SPECIAL  INTENT.  *  376 


Illustrations. 

Libel  complained  of:  "On  Saturday  evening  died  of  the  small-pox  at  liis  house  in 
Grosvenor  Square,  Sir  Charles  Gaunter  Nicoll,  Knight  of  the  Most  Honorable  Order  of 

the  Bath,  and  representative  in  Parliament  for  the  town  of  Peterborough He 

could  not  be  called  a  friend  to  his  country,  for  he  changed  his  opinions  lor  a  red  rib- 
bon,, and  voted  for  that  pernicious  object,  the  excise."  It  was  alleged  that  this  pas- 
sage was  published  with  intent  to  vilify,  blacken  and  defame  the  memory  of  the  said 
Sir  Charles,  and  to  stir  up  the  hatred  and  evil  will  of  the  people  against  the  family  and 
posterity  of  the  said  Sir  Charles.  An  information  was  granted.  11.  v.  Critchley  (1734), 
4  T.  R.  129,  n. 

But  an  indictment  which  alleged  that  a  libel  on  the  late  Earl  Cowper  had  been  pub- 
lished with  intent  to  disgrace  and  vilify  his  memory,  reputation,  and  character,  but 
did  not  go  on  to  aver  any  intent  to  create  ill  blood  or  throw  scandal  on  the  children 
and  family  of  Earl  Cowper,  or  to  provoke  them  to  a  breach  of  the  peace,  was  held  bad, 
after  a  verdict  of  guilty,  and  judgment  arrested.     R.  v.  Topham,  4  T.  R.  126. 

*  And,  d,  fortiori,  to  discuss  the  characters  of  deceased  statesmen  and  noble-  *  377 
men,  as  a  matter  of  history,  is  no  crime.     Per  Lord  Kenyon,  C.J.,  ib.  129. 

But  if  in  discussing  the  character  and  policy  of  William  III.  and  George  I.,  discredit 
is  thrown  on  the  character  and  administration  of  the  present  king  (George  II.),  with 
intent  to  spread  dissatisfaction  among  his  subjects,  the  publication  is  a  seditious  libel. 
R.  V.  Dr.  Shebbeare  (175S),  cited  in  Lord  Mansfield's  judgment  in  R.  v.  Dean  of  St. 
Asaph,  3  T.  R.  430,  n. 

The  defendant  published  a  sensational  account  of  a  cruel  murder  committed  by  cer- 
tain Jews  said  to  have  lately  arrived  from  Portugal,  and  then  living  near  Broad  Street. 
They  were  said  to  have  burnt  a  woman  and  a  new-born  baby,  because  its  father  was  a 
Christian.  Certain  Jews  who  had  arrived  from  Portugal,  and  who  then  lived  in  Broad 
Street,  were  attacked  by  the  mob,  barbarously  treated,  and  their  lives  endangered.  A 
criminal  information  was  granted,  although  it  was  objected  that  it  did  not  appear  pre- 
cisely who  were  the  persons  accused  of  the  murder.  R.  v.  Osborne,  Kel.  230  ;  2  Bar- 
nard, 138,  166. 

It  is  a  crime  to  write  of  a  Roman  Catholic  nunnery  that  it  is  a  "  brothel  of  prostitu- 
tion ;"  for  this  is  an  aspersion  on  the  characters  of  the  nuns  in  general,  though  none 
are  singled  out  by  name.     R.  v.  Gathercole,  2  Lew.  C.  C.  254. 

A  pamphlet  reflecting  on  the  government  and  asserting  that  its  officers  are  corrupt, 
ignorant,  and  incapable,  will  be  a  libel,  and  punishable  as  a  crime  ;  although  no  par- 
ticular member  of  the  government,  and  no  individual  officer,  is  mentioned  or  referred 
to.  R.  V.  Tutchin,  14  Howell's  St.  Tr.  1095;  5  St.  Tr.  527;  Holt,  56;  2  Lord 
Raym.  1061  ;  Salk.  50  ;  6  Mod.  268. 

A  notice  was  posted  in  church  calling  attention  to  certain  abuses  permitted  by  "  the 
trustees"  of  Lambeth  workhouse  ;  an  information  was  granted  on  behalf  of  the  whole 
body  of  trustees  [although  the  trustees  could  not  before  the  Judicature  Act  have  jointly 
sued  for  the  libel,  ante,  p.  370].     R.  v.  Griffin,  1  Sess.  Cas.  257. 

An  information  was  granted  for  a  libel  commencing:  —  "Whereas  an  East  India 
director  has  raised  the  price  of  green  tea  to  an  extravagant  rate,"  although  there  was 
nothing  to  show  which  particular  director  was  intended.     R.  v.  Jenour,  7  Jlod.  400. 

But  an  indictment  for  a  libel  on  "persons  to  the  jurors  unknown"  is  bad,  even 
after  verdict.     R.  v.  Orme  [vel  Alme)  &  Nutt,  1  Ld.  Raym.  486  ;  3  Salk.  224. 

It  is  a  misdemeanor  at  common  law  to  utter  words  which 
amount  to  a  direct  challenge  to  fight  a  duel,  or  to  utter  insulting 

331 


*  377  CRnnNAL  law. 

words  with  the  intention  of  provoking  another  to  send  a 

*  378    challenge.^     *  A  fortiori^  it  is  a  misdemeanor  to  write  a 

challenge  or  to  consciously  deliver  a  written  challenge. 
And  indeed  all  words  which  amount  to  a  solicitation  to  commit 
a  crime,  whether  spoken  or  written,  are  indictable,  whether  the 
person  solicited  commit  the  crime  or  not.^ 

It  is  also  said  to  be  a  misdemeanor  to  fabricate  and  publish  false  news 
in  writing,*  or  to  endeavor,  by  spreading  false  rumors,  to  raise  or  lower  the 
price  of  food  or  merchandise.*  According  to  Scroggs,  J.,  it  is  a  misde- 
meanor to  publish  any  news  at  all,  though  true  and  harmless.®  Where 
eight  persons  combined  to  raise  the  price  of  Government  stocks  on  Feby. 
21st,  1814,  by  spreading  a  false  rumor  of  the  death  of  Napoleon  Buona- 
parte, they  were  indicted  and  convicted  of  a  conspiracy,  for  their  common 
purpose  was  illegal.^  But  this  is  scarcely  an  authority  for  holding  that  the 
merely  spreading  a  false  rumor  is  in  itself  indictable. 

In  all  the  above  cases  of  misdemeanor  at  common  law,  the  de- 
fendant may  be  fined  or  imprisoned,  or  both ;  but  he  cannot  be 
sentenced  to  hard  labor.  He  may  also  be  required  to  find  sure- 
ties to  keep  the  peace  and  to  be  of  good  behavior  for  any  length  of 
time.  A  married  woman  could  not,  before  the  Married  Women's 
Property  Act,  be  fined ;  but  she  could  be  required  to  find  sure- 
ties, though  she  could  not  enter  into  recognizances  herself. 

None  of  the  above  offences  can  be  tried  at  Quarter  Sessions. 

Certain  statutes  have  been  passed  in  aid  of  the  common  law :  — 

By  the  6  &  7  Vict.  c.  96,  s.  3,  it  is  a  misdemeanor  to  publish, 
or  threaten  to  publish,  any  libel  upon  any  other  person, 

*  379    or  to  threaten  to  publish,  or  propose  to  *  abstain  from  pub- 

lishing, or  to  offer  to  prevent  the  publishing  of,  any  matter 
or  thing  touching  another,  with  intent  to  extort  money,  or  gain, 
or  to  procure  for  any  one  any  appointment  or  office  of  profit. 
The  offender  may  be  sentenced  to  imprisonment  for  any  term 
not  exceeding  three  years,  either  with  or  without  hard  labor. 
Except  under  the  first  clause  of  the  section  the  matter  or  thing 
threatened  to  be  published  need  not  be  libellous ;  the  intent  to 
extort  money  is  the  gist  of  the  offence.^     But  the  commencement 

1  R   V.  Philipps,  6  East,  464,  and  note  on  p.  476.  2  r,  ^,  Higgins,  2  East,  5. 

8  Dic.L.  L.  23.  *  See  R.  v.  Waddington  (1800),  1  East,  143. 

6  Se^ll  Hargrave's  St.  Tr.  322.  ^  R.  v.  De  Berenger,  3  M.  &  S.  67. 

7  R.  V.  Coglilan,  4  F.  &  F.  316. 

332 


CEEMINAL   INFOEMATIOXS.  *  379 

of  legal  proceedings  is  not "  a  publishing  of  any  matter  or  thing  " 
within  the  meaning  of  the  section.^ 

By  the  6  &  7  Vict.  c.  96,  s.  4,  it  is  a  misdemeanor  to  mali- 
ciously publish  any  defamatory  libel  knowing  the  same  to  be 
false;  the  punishment  may  be  fine  or  imprisonment,  or  both, 
^uch  imprisonment  not  to  exceed  two  years. 

By  the  6  &  7  Vict.  c.  96,  s.  5,  it  is  a  misdemeanor  to  mali- 
ciously publish  any  defamatory  libel;  the  punishment  may  be 
fine  or  imprisonment,  or  both,  such  imprisonment  not  to  exceed 
one  year.- 

By  the  24  &  25  Vict.  c.  96,  ss.  46,  47,  it  is  a  felony  to  accuse 
or  threaten  to  accuse  another  of  any  infamous  crime,  whether  by 
letter  or  otherwise,  with  intent  to  extort  money  or  gain.  The 
offender  may  for  each  letter  he  has  sent  be  sentenced  to  penal 
servitude  for  life,  or  for  any  term  not  less  than  three  years,^  or  to 
imprisonment,  with  or  without  hard  labor,  for  any  term  not  ex- 
ceeding two  years.* 

*  II.   Criminal  Remedy  hy  Information.  *  380 

In  some  cases  of  indictable  words,  the  prosecutor  may  also,  if 
he  prefer,  proceed  by  way  of  Criminal  Information. 
Criminal  Informations  are  of  two  kinds  :  — 

(i)   Those  filed  by  the   Attorney-General  himself,  usually 

called  ex  officio  informations, 
(ii)  Those  filed  by  the  Master  of  the  Crown  Office  by  the 
direction  of  the  Queen's  Bench  Division  at  the  in- 
stance of  some  private  individual, 
(i)  The  first  class  is,  as  a  rule,  confined  to  libels  of  so  dangerous 
a  nature  as  to  call  for  immediate  suppression  by  the  officers  of 
the  State ;  especially  blasphemous,  obscene,  or  seditious  libels,  or 
such  as  are  likely  to  cause  immediate  outrage  and  public  riot  and 
disturbance.      In  these  cases,  therefore,  the  Attorney-General 
liimself  takes  the  initiative.     There  has  been  no  ex  officio  infor- 
mation filed  since  1830. 

1  R.  V.  Yates  and  another,  12  Cox,  C.  C.  441. 

2  See  the  whole  Statute  in  Appendix  C,  ipost,  p.  674. 
8  Now  five  years,  27  &  28  Vict.  c.  47,  s.  2. 

4  See  R.  V.  Redman,  L.  R.  1  C.  C.  R.  12  ;  39  L.  J.  M.  C.  89  ;  R.  V.  Ward,  10  Coz, 
C.  C.  42 ;  and  before  this  Act,  R.  v.  Southerton,  6  East,  126. 

333 


*  380  CRIMINAL  LAW. 

(ii)  In  the  second  class  of  informations  the  relator  is  generally 
some  private  individual  who  has  been  defamed.  But  still  the 
words  complained  of  must  be  such  as  call  for  the  prompt  and  im- 
mediate interference  of  the  Court.  There  must  be  some  evidence 
that  the  ordinary  remedies  by  action  or  indictment  are  insufficient 
in  the  particular  case.  The  Court,  moreover,  always  looks  at  all 
the  circumstances  which  occasioned  or  provoked  the  libel.  Thus, 
if  the  prosecutor  or  relator  has  himself  libelled  the  defendant,^ 
or  in  any  way  invited  the  publication  of  the  libel  of  which  he 
now  complains,'-^  or  had  an  opportunity  of  expressing  his 

*  381    disapproval  of  its  terms,  of  v/hich  *  he  did  not  avail  him- 

self,^ no  information  will  be  granted. 
It  is  not  necessary  that  the  libel  should  charge  a  criminal 
offence,  to  induce  the  Court  to  grant  a  criminal  information.  It 
is  enough  that  the  libel,  though  on  a  private  individual,  is  one 
requiring  prompt  suppression.  The  rank  and  dignity  of  the  per- 
son libelled  was  formerly  taken  into  consideration ;  and  informa- 
tions have  been  granted  for  imputing  that  the  children  of  a 
marquis  were  bastards  ;  ^  that  a  peer  had  married  an  actress ;  ^ 
that  a  naval  captain  was  a  coward,  a  bishop  a  bankrupt,  a  peer  a 
perjurer,  &c.,  &c.  So,  too,  where  foreign  potentates  or  their  am- 
bassadors are  libelled,  an  information  will  be  readily  granted,  lest 
ill-feeling  should  spring  up  between  England  and  that  foreign 

country. 

Again,  for  any  libels  tending  to  obstruct  the  course  of  justice, 
for  invectives  against  a  judge  or  magistrate,  or  imputations  on  a 
jury,  an  information  will  be  readily  granted ;  and  so  for  all  re- 
flections on  the  administration  of  justice,  and  for  all  publications 
tending  to  prejudice  the  fair  trial  of  any  accused  person.^ 

So  if  there  be  general  reflections  on  a  body  or  class,  no  parti- 
cular individual  being  specially  attacked,  still  if  the  words  are 
likely  to  cause  outrage  and  violence,  the  Court  will  grant  an  in- 
formation :  as  where  the  libel  was  on  the  Jews,  and  certain  Jews 
in  consequence   had   been  ill-used  by  the  mob;"  so  where  the 

1  R.  V.  Nottingham  Journal,  9  Dowl.  1042. 

2  R.  V.  Larrieu,  7  A.  &  E.  277.  ^  R.  v.  Lawson,  1  Q.  B.  486. 

*  R.  V.  Gregory,  8  A.  &  E.  907.  ^  R.  v.  Kinnersley,  1  Wm.  Bl.  294. 

6  R.  V.  Watson  and  others,  2  T.  R.  199,  post,  p.  428  ;  R.  v.  Jolliffe,  4.  T.  R.  285  ; 
R.  V.  "WTiite,  1  Camp.  359  ;  Ex  parte  Duke  of  Marlborough,  5  Q.  B.  955 ;  13  L.  J.  M. 
C.  105  ;  1  Dav.  &  Mer.  720  ;  R.  v.  Gray,  10  Cox,  C.  C.  184. 

^  Anon.,  2  Barnard.  138;  R.  v.  Osborn,  ib.  166,  ante,  p.  377. 

334 


CRIIVIINAL  INFORMATIONS.  *  382 

|[reneral  *  body  of  clergymen  in  a  particular  diocese  were  *  382 
iibelled.i 

But  no  information  will  be  granted  for  a  libel  contained  in  a 
private  letter  never  made  public  ;  ^  nor  for  any  matter  of  mere 
trade  dispute,  even  though  fraud  be  imputed  ;  nor  in  any  case 
where  no  malicious  intention  appears ;  ^  nor  where  the  matter  is 
trivial  and  the  civil  remedy  sufficient. 

A  fortiori^  no  information  will  be  granted  where  the  words  are 
privileged  by  reason  of  the  occasion  on  which  they  were  em- 
ployed.^ 

In  every  case  the  application  for  a  criminal  information  must 
be  made  promptly  ;  any  delaj-  in  making  the  application  after 
knowledge  of  the  libel  has  reached  the  prosecutor  will  be  ground 
for  refusing  an  information,  unless  such  delay  can  be  satisfactorily 
accounted  for.  The  prosecutor,  too,  must  come  to  the  court  in 
the  first  instance,  and  must  not  have  attempted  to  obtain  redress 
in  other  ways  before  applying  for  a  criminal  information. 

Illustrations. 

A  county  court  judge  illegally  refused  to  hear  a  barrister  who  appeared  before  him. 
The  barrister  memorialized  the  Lord  Chancellor.  Obtaining  no  redress,  he  applied  to 
the  Court  of  Queen's  Bench  for  a  criminal  information.  This  would  have  been  granted 
him,  had  he  not  previously  applied  to  the  Lord  Chancellor.  E.  v.  ilarshall,  4  E.  & 
B.  475. 

An  information  was  refused  where  the  alleged  libel  was  proved  to  be  a  true  copy  of 
a  report  of  a  committee  of  the  House  of  Commons,  though  it  did  reflect  on  the  indi- 
vidual prosecutor,  and  though  its  publication  was  not  authorized  by  the  House.  R.  v. 
AVright  (1799),  8  T.  R.  293. 

A  French  gentleman  D'Eon  de  Beaumont  published  a  libel  on  the  Count  de  Guer- 
chy,  then  French  Ambassador  in  England.  The  libel  chiefly  referred  to  private  dis- 
putes between  D'Eon  and  the  Count,  alleging  that  the  Count  had  supplanted  D'Eon  at 
the  Court  of  Versailles  by  trickery ;  but  it  also  reflected  on  the  public  con- 
duct of  the  ambassador,  and  insinuated  *  that  he  was  not  fit  for  his  post.  An  *  383 
information  was  filed  and  D'Eon  convicted.  (Lord  Mansfield.)  R.  v.  D'Eon 
(1764),  3  Burr.  1514  ;  1  W.  Bl.  501 ;  Dig.  L.  L.  88.  And  see  R.  v.  Peltier  (1803),  28 
Howell's  St.  Tr.  617;  ante,  p.  357. 

Lord  George  Gordon  was  tried  in  1787  and  convicted  upon  an  information  charging 
him  with  libelling  Marie  Antoinette,  Queen  of  France,  and  "her  tool  "  the  French 
Ambassador  in  London.  He  was  fined  £500  and  sentenced  to  two  years'  imprisonment, 
and  at  the  expiration  of  that  time  to  find  sureties  for  his  good  behavior.  This  he  could 
not  do  :  so  he  turned  Jew  and  died  in  prison  on  November  1st,  1793.  (Ashurst,  J.) 
R.  V.  Lord  George  Gordon,  22  Howell's  St.  Tr.  177. 

1  R.  V.  Williams,  5  B.  &  Aid.  595.  ^  Ex  parte  Dale,  2  C.  L.  R.  870 

3  Ex 'parte  Doveton,  26  L.  T.  73.  *  Ex  parte  Hoare,  23  L.  T.  83. 

335 


*383  CREVIIKAL  LAW. 

The  Co;<rzer  published  the  following  passage: —  "The  Emperor  of  Russia  is  render- 
ing himself  obnoxious  to  his  subjects  by  various  acts  of  t}Tanny,  and  ridiculous  in  the 
e3'es  of  Europe  by  his  inconsistency.  He  has  now  passed  an  edict  prohibiting  the  ex- 
portation of  timber,  deals  and  other  naval  stores.  In  consequence  of  this  ill-timed 
law,  upwards  of  100  sail  of  vessels  are  likely  to  return  to  this  country  without  freights." 
This  was  deemed  a  libel  upon  the  Emperor  Paul  I.;  an  information  was  giantcd,  and 
the  iiroprietor  of  the  Courier  was  fiued  £100,  sentenced  to  six  months'  imprisonment, 
and  to  find  sureties  for  good  behavior  for  five  years  from  the  expii-ation  of  that  term. 
The  printer  and  publisher  were  also  sentenced  to  one  month's  imprisonment.  (Lord 
Keuyon,  C.J.)  R.  v.  Vint  (1799),  27  Howell's  St.  Tr.  627. 


III.  Laiu  Common  to  all  Criminal  Cases. 

It  must  be  proved  that  the  defendant  published  the  defamatory 
words.  In  civil  cases  it  is  necessary  to  show  a  publication  to 
some  third  person  other  than  the  person  defamed.  In  criminal 
cases  this  is  not  absolutely  necessary  ;  (a)  it  is  sufficient  to  prove 
a  publication  to  the  prosecutor  himself,  provided  it  be  alleged  and 
proved,  that  the  defendant  did  so  with  intent  "to  provoke  the 
prosecutor,  and  excite  him  to  break  the  peace."  ^ 

In  all  other  respects  the  law  as  to  publication  is  practically 
identical  in  civil  and  criminal  cases.^ 
*  384  *  Thus  both  author,  printer  and  publisher  are  each  and 
all  liable  to  be  prosecuted  for  a  libel  contained  in  any  book 
or  newspaper.  In  the  latter  case  the  proprietor  of  the  ne\vsp:i pen- 
will  also  be  liable.  Every  fresh  publication  of  a  libel  is  a  fresh 
crime.  The  sale  of  every  separate  copy  of  a  libel  is  a  distinct 
offence.^  "  Not  only  the  party  who  originally  prints,  but  every 
party  who  utters,  who  sells,  who  gives,  or  who  lends  a  copy  of 
an  offensive  publication  will  be  liable  to  be  prosecuted  as  a  pub- 
lisher." ^  "  The  mere  delivery  of  a  libel  to  a  third  person  by 
one  conscious  of  its  contents  amounts  to  a  publication,  and  is  an 
indictable  offence."  ^ 

In  the  last  extract,  the  learned  Baron  is  careful  to  insert  the 
words  "  by  one  conscious  of  its  contents."     For  although   any 

1  Per  Abbott,  J.,  in  R.  v.  Wegener,  2  Stark.  245.  And  see  Hicks'  case,  Hob.  215  ; 
Poph.  139  ;  cited  6  East,  476  ;  Clutterbuck  v.  Chaffers,  1  Stark.  471. 

2  See  c.  VI.,  ante,  pp.  150-168.  »  R.  v.  Carlile,  1  Chitty,  453. 
*  Per  Bayley,  J.,  in  R.  v.  Carlile,  3  B.  &  Aid.  169. 

6  Per  Wood,  B.,  in  Maloney  v.  Bartley,  3  Camp.  213. 

(a)  Upon  this  subject  see  State  v.  Avery,  112  ;  Swindle  v.  State,  2  Yerg.  581 ;  Hazle- 
7  Conn.  268  ;  Hodges  v.  State,  5  Humph,     ton  Coal  Co.  v.  Megargel,  4  Barr.  324. 

336 


CRIMINAL  LAW.  *  384 

delivery  to  a  third  person  will  amount  to  a  primd  facie  publica- 
tion, it  is  open  to  the  defendant  to  prove,  both  in  civil  and 
criminal  cases,  that  he  delivered  the  libel  without  any  knowledge 
of  the  libellous  nature  of  its  contents  :  e.g.,  where  a  postman  or 
messenger  carries  a  sealed  letter  ^  or  a  parcel  in  which  libellous 
handbills  were  wrapped  uj),^  or  where  the  defendant  cannot  read.^ 
And  even  if  the  defendant  read  the  libel,  still  if  the  Avords  were 
on  the  face  of  them  innocent,  and  only  became  defamatory  when 
their  meaning  was  pointed  by  certain  extrinsic  facts  and  cir- 
cumstances wholly  unknown  to  the  defendant,  then  he  w^ould 
still  be  unconscious  that  what  he  published  was  a  libel,  and  such 
a  publication  would  be  deemed  innocent ;  as  where  the  libel  was 
contained  in  an  allegory  or  a  riddle,  to  which  the  defend- 
ant had  *  no  clue.  Again,  where  the  defendant  copied  *  385 
a  libel  knowing  it  to  be  a  libel,  and  afterwards  inadvert- 
ently delivered  such  copy  to  a  third  person  in  mistake  for  some 
otlier  paper,  it  is  submitted  that  he  would  not  be  held  criminally 
liable  for  such  an  accident,  though  he  would  be  held  liable  in  a' 
civil  case.* 

A  master  will  be  liable  criminally  for  the  acts  of  his  servant 
done  in  the  ordinary  course  of  his  emplo^'ment  in  pursuance  of 
his  master's  orders,  general  or  express.  The  liability  of  a  defend- 
ant for  such  constructive  publication  is  now  defined  by  the  7th 
section  of  Lord  Campbell's  Act,  ^  which,  however,  rather  declared 
than  altered  the  existing  law :  —  "  Whensoever,  upon  the  trial  of 
any  indictment  or  information  for  the  publication  of  a  libel,  under 
the  plea  of  not  guilty,  evidence  shall  have  been  given  which  shall 
establish  a  presumptive  case  of  publication  against  the  defendant 
by  the  act  of  any  other  person  by  his  authority,  it  shall  be  compe- 
tent to  such  defendant  to  prove  that  such  publication  was  made 
without  his  authority,  consent  or  knowledge,  and  that  the  said 
publication  did  not  arise  from  want  of  due  care  or  caution  on  his 
part." 

The  section  only  says  that  evidence  may  be  given  of  such  facts  ; 

1  Per  Lord  Kenyon  in  R.  v.  Topham,  4  T.  R.  129. 

2  Day  V.  Bream,  2  Moo.  &  Rob.  55. 

8  Per  Lord  Kenyon,  C.J.,  in  R.  v.  Holt,  5  T.  R.  444. 

*  See  the  dicta  of  Lord  Kenyon  in  R.  v.  Topham,  4  T.  R.  129;  and  in  R.  V.  Lord 
Abingdon,  1  Esp.  228;  and  the  ruling  of  Abbott,  C.J.,  in  R.  v.  Harvey,  2  B.  &  C. 
257. 

5  6  &  7  Vict.  c.  96. 

22  337 


*  385  CRIMINAL  LAW. 

but  it  has  always  been  construed  to  mean  that  such  facts,  if  proved, 
shall  be  an  answer  to  the  indictment ;  for  such  evidence  was  al- 
ways admissible  at  common  law  in  mitigation  of  punishment  (if 
not  in  defence).  I  can  only  find  one  case  reported  in  which  a 
defendant  has  availed  himself  of  this  statutory  defence,  and  that 
is  R.  V.  Holbrook  and  others.^ 


*  386  *  Illustrations. 

Merely  to  be  in  possession  of  a  copy  of  a  libel  Is  no  crime,  unless  some  publication 
thereof  ensue.  R.  v.  Beere,  Carth.  409  ;  12  Mod.  219;  Holt,  422  ;  Salk.  417  ;  1  Lord 
Raym.  414;  John  Lamb's  Case,  9  Rep.  60  ;  ante,  p.  156.  Overruling  R.  v.  Algernon 
Sidney,  9  Howell's  St.  Tr.  817,  867  ;  3  Hargrave's  St.  Tr.  807  ;  4  St.  Tr.  197. 

As  soon  as  the  manuscript  of  a  libel  has  passed  out  of  the  defendant's  possession  and 
control,  it  is  deemed  to  be  published,  so  far  as  the  defendant  is  concerned.  Per  Holroyd, 
J.,  in  R.  V.  Burdett,  4  B.  &  Aid.  143. 

A  libel  was  printed  and  published  ;  the  printer  produced  the  manuscript  from 
which  he  had  printed  it,  and  this  manuscript  was  proved  to  be  in  the  handwriting  of 
the  prisoner  ;  there  was  no  evidence  to  show  that  he  authorized  or  directed  the  printing 
or  publishing.  This  is  evidence  of  publication  sufficient  to  go  to  the  jury,  though  the 
prisoner  may  give  evidence  to  rebut  it.     R.  v.  Lovett,  9  C.  &  P.  462. 

Cooper  told  the  editor  several  good  stories  against  the  Rev.  J.  K.,  and  asked  the 
editor  to  "  show  Mr.  K.  up  ;  "  subsequently  the  editor  published  the  substance  of  them 
in  the  newspaper  ;  this  was  held  a  publication  by  Cooper,  although  the  editor  knew  of 
the  facts  from  other  quarters  as  well.  R.  v.  Cooper,  15  L.  J,  Q.  B.  206  ;  8  Q.  B.  533. 
The  defendant  was  the  proprietor  of  The  Times,  but  resided  in  the  country,  leaving  the 
management  of  the  paper  entirely  to  his  son,  with  whom  he  never  interfered.  A  libel 
on  the  late  Lord  Cowper  having  appeared  therein,  the  defendant  was  held  criminally 
liable,  and  convicted.  R.  v.  Walter,  3  Esp.  21.  And  see  R.  v.  Gutch,  Fisher  & 
Alexander,  Mo.  &  Mai.  433. 

A  rule  was  granted,  calling  on  Wiatt  to  show  cause  why  he  should  not  be  attached 
for  selling  a  book  containing  a  libel  on  the  Court  of  King's  Bench.  The  book  was  in 
Latin.  On  filing  an  affidavit  that  he  did  not  understand  Latin,  and  on  giving  up  the 
name  of  the  printer  from  whom  he  obtained  it,  and  the  name  of  the  author,  the  rule  was 
discharged.     R.  v.  Wiatt  (1722),  8  Mod.  123. 

The  defendant  was  a  bookseller,  who  published  a  seditious  libel  written  by  the  Rev. 
Gilbert  Wakefield ;  he  was  convicted,  but  filed  an  affidavit  in  mitigation  of  punish- 
ment that  he  had  no  knowledge  whatever  of  the  nature  of  the  book  or  its  contents  ;  he 
was  accordingly  discharged  on  payment  of  a  fine  of  thirty  marks.  The  Rev.  Gilbert 
Wakefield  was  sentenced  to  two  years' imprisonment.  R.  v.  Cuthell  (1799),  27  How- 
ell's St.  Tr.  642. 
*  387  *  There  appeared  in  Mist's  Weekly  Journal,  an  account  professedly  of  certain 

intrigues,  &c.,  at  the  Persian  Court  ;  but  any  reader  of  ordinary  intelligence 
could  see  that  it  was  the  English  Court  that  the  author  really  meant,  that  the  Sultan 
"Esrefi"'  was  intended  for  George  IL,   his  father   the  late  Sultan  "Merewits"   for 

1  3Q.  B.  D.  60;  47  L.  J.  Q.  B.  35 ;  26  W.  R.  144;  37  L.  T.  530;  4  Q.  B.  D.  42; 
48  L.  J.  Q.  B.  113  ;  27  W.  R.  313;  39  L.  T.  536,  ante,  pp.  364,  5. 

338 


INNOCENT   PUBLICATION.  *  387 

George  I.,  "Soplii"  for  the  Pretendei-,  &c.,  &c.  The  two  coinpositoi'S  who  set  it  up 
divided  tlie  work  between  them,  one  taking  one  cohinni,  the  other  the  next.  It  was 
almost  impossible  that  thus  they  could  gain  any  notion  of  the  general  sense  of  what 
they  were  printing.  Yet  one  of  them  was  convicted  of  publishing  a  seditious  libtd  ; 
and  so  was  the  servant  whose  business  "was  only  to  clap  down  the  press."  R.  v.  Knell 
(1728),  1  Barnard,  305  ;  R.  v.  Clerk,  ib.  304. 

In  Massachusetts  it  has  been  held  that  the  publisher  of  a  newspaper  is  not  liable  for 
publishing  an  article  which  he  reasonably  and  boitd  fide  believes  to  be  a  fancy  sketch  or 
a  fictitious  nai'rative,  in  no  way  apjtlicable  to  any  living  person ;  although  the  writer 
intended  it  to  be  libellous  of  the  plaintiff.  Probably  this  would  be  a  defence  in  Eng- 
land in  a  criminal  case  ;  not  I  apprehend  in  any  civil  proceeding.  Smith  v.  Ashley 
(1846),  52  Mass.  (11  Met.)  367  ;  Dexter  v.  Spear,  4  Mason,  115.  See  Chubb  v.  Flan- 
nagan,  6C.  &  P.  431. 

Rev.  Samuel  Paine  sent  his  servant  to  liis  study  for  a  certain  paper  which  he  wished 
to  show  Bi-ereton  ;  the  servant  by  mistake  brought  a  libellous  epitaph  on  Queen  Mary 
which  Paine  inadvertently  handed  to  Brereton.  This  would  probably  be  deemed  a  suf- 
ficient publication  in  a  civil  case  (note  to  Mayne  v.  Fletcher,  4  Man.  &,  Ky.  312),  but 
was  held  insufficient  in  a  criminal  case.  R.  v.  Paine  (1695),  5  Mod.  163.  See  the  re- 
marks of  Lord  Kenyon  in  R.  v.  Lord  Abingdon,  1  Esp.  228. 

A  libel  api)eared  in  the  Man  of  the  World  of  May  11th.  On  May  25tli  the  defend- 
ant was  appointed  publisher  of  the  paper  and  the  back-stock  was  sent  to  his  office.  On 
December  13th  the  relators  agent  ajiplied  at  the  defendant's  office  for  a  copy  of  the 
uumber  for  March  11th  and  the  defendant  told  his  assistant  to  look  it  up  and  deliver  it, 
which  was  done.  The  defendant  swore  that  he  had  not  examined  the  back  numbers  at 
all  and  knew  nothing  of  the  libel.  The  Lord  Chief  Justice  intimated  that  in  tlio.ie 
circumstances  no  jury  would  ever  find  the  defendant  guilty  of  criminally  publish- 
ing the  libel.  R.  v.  Barnard,  Ex  parte  Lord  Ronald  Gower,  Times  for  Jan.  13th, 
1879. 

A  defendant  on  tlie  trial  of  any  information  or  indictment  may- 
give  evidence  to  show  that  the  alleged  libel  was  privileged  by 
reason  of  the  occasion  ;  and,  unless  such  privilege  be  abso- 
lute, the  prosecutor  may  rebut  *  this  defence  by  evidence    *  388 
of  express  malice  ;  precisely  as  in  civil   cases  ;  ante^  cc. 
VIII.  and  IX. 

Except  in  such  cases  of  privilege  it  is  quite  unnecessary  to 
prove  malice  in  any  criminal  proceeding  for  a  defamatory  libel ; 
it  is  enough  that  the  defendant  published  that  which  tlie  jury 
have  found  to  be  a  libel.  After  conviction,  however,  the  defend- 
ant is  allowed  to  file  affidavits  in  mitigation  of  punishment,  show- 
ing that  he  honestly  believed  in  the  truth  of  what  he  wrote,  and 
published  it  without  malice.^ 

The  law  is  otherwise  in  Scotland ;  there  malice  must  be  proved  iu  all 
criminal  proceedings,  tliough  it  need  never  be  in  civil.'' 

^  V^.v.  Sir  F.  Burdett,  3  B.  &  Aid.  95. 
'^  1  Hume,  342  ;  Borthwick,  190,  195. 

339 


*  388  CRIMINAL  LAW. 

But  it  is  in  the  matter  of  justification  that  the  main  difference 
lies  between  civil  and  criminal  proceedings.  In  a  civil  trial,  as 
we  have  seen,  ante,  c.  VII.,  the  truth  of  the  matters  charged  in  a 
libel  v/as  always  a  perfect  answer  to  the  action  ;  the  plaintiff  was 
never  allowed  to  recover  damages  for  an  injury  done  to  a  reputa- 
tion to  which  he  had  no  right.  But  in  all  criminal  proceedings, 
by  the  common  law,  the  truth  of  the  libel  constitutes  no  defence. 
The  maxim  used  to  be  "  the  greater  the  truth,  the  greater  the 
libel  ;  "  meaning  that  the  injudicious  publication  of  the  truth 
about  A.  would  be  more  likely  to  sting  him  to  a  breach  of  the 
peace  than  if  some  falsehood  were  invented  about  him,  which  he 
could  easily  and  completely  refute.  Accordingly,  on  a  criminal 
trial,  whether  of  an  indictment  or  an  information,  no  evidence 
could  be  received  of  the  tiuth  of  the  matters  charged,  not  even 
in  mitigation  of  punishment.  But  now,  by  the  6th  section  of 
Lord  Campbell's  Act,^  "  On  the  trial  of  an}^  indictment  or  infor- 
mation for  a  defamatory  libel,  the  defendant  having  pleaded 

*  389    *such  plea  as  hereinafter  mentioned,  the  truth  of  the  mat- 

ters charged  may  be  inquired  into,  but  shall  not  amount  to 
a  defence,  unless  it  was  for  the  public  benefit  that  the  said  matters 
charged  should  be  published.  To  entitle  the  defendant  to  give 
evidence  of  the  truth  of  such  matters  charged  as  a  defence  to  such 
indictment  or  information,  it  shall  be  necessary  for  the  defendant, 
in  pleading  to  the  said  indictment  or  information,  to  allege  the 
truth  of  the  said  matters  charged  in  the  manner  now  required  in 
pleading  a  justification  to  an  action  for  defamation,  and  further 
to  allege  that  it  was  for  the  public  benefit  that  the  said  matters 
charged  should  be  published,  and  the  particular  fact  or  facts  by 
reason  whereof  it  was  for  the  public  benefit  that  the  said  matters 
charged  should  be  published  ;  to  which  plea  the  prosecutor  shall 
be  at  liberty  to  reply  generally,  denying  the  whole  thereof.  If 
after  such  plea  the  defendant  shall  be  convicted  on  such  indict- 
ment or  information,  it  shall  be  competent  to  tlie  Court,  in  pro- 
nouncing sentence,  to  consider  whether  the  guilt  of  the  defendant 
is  aggravated  or  mitigated  by  the  said  plea  and  by  the  evidence 
given  to  prove  or  disprove  the  same  :  Provided  alwa3^s  that  the 
truth  of  the  matters  charged  in  the  alleged  libel  complained  of 
by  such  indictment  or  information,  shall  in  no  case  be  inquired 
into  without  such  plea  of  justification  :  Provided  also,  that,  in 

1  6  &  7  Vict.  c.  96. 

340 


REMEDIES   FOR   LIBEL.  *  389 

addition  to  such  plea,  it  shall  be  competent  to  the  defendant  to 
plead  a  plea  of  not  guilty  :  Provided  also,  that  nothing  in  this  Act 
contained  sliall  take  away  or  prejudice  any  defence  under  the  plea 
of  not  guilty,  which  it  is  now  competent  to  the  defendant  to  make 
under  such  plea  to  any  action  or  indictment,  or  information  for 
defamatory  words  or  libel."  (a) 

And  here  note  that  there  is  still  a  most  important  distinction 
between  civil  and  criminal  cases  on  this  point.  The  mere 
truth  is  an  answer  to  a  civil  action,  however  *  maliciously  *  390 
and  unnecessarily  the  words  were  published.  But  in  a 
criminal  case,  the  defendant  has  to  prove,  not  only  that  his 
assertions  are  true,  but  also  that  it  was  for  the  public  benefit  that 
they  should  be  published.  Moreover,  the  statute  does  not  apply 
in  cases  of  blasphemous,  obscene,  or  seditious  words.^  It  does 
not  apply,  by  its  express  terms,  unless  there  be  a  special  plea  of 
justification.  In  short,  the  truth  of  the  matter  complained  of 
"  can  only  become  a  defence  under  the  statute,  and  then  only 
when  the  statutory  conditions  are  complied  with."  Wherever 
the  Act  does  not  apply,  the  law  remains  still  as  it  was  settled 
prior  to  that  Act.  Hence  a  magistrate  at  the  preliminary  inves- 
tigation of  a  charge  of  libel,  whether  under  s.  5  of  the  G  &  7  Vict. 
c.  96,  or  at  common  law,  has  no  power  to  receive  and  perpetuate 
any  evidence  of  the  truth  of  the  matters  charged.^ 

Thus  we  see  that  there  are  two  criminal  remedies  for  libel  —  by  criminal 
information  and  by  indictment,  —  in  addition  to  the  civil  remedy  of  action 
for  damages.  That  there  should  be  a  criminal  remedy  as  well  as  a  civil 
one  is  clearly  necessary,  for  most  libehers  are  penniless,  and  a  civil  action 
has  no  terrors  for  them.  The  plaintiff  wdl  never  get  his  damages.  In 
fact  —  as  it  appears  from  a  recent  case  —  the  proprietor  of  many  a  low 
newspaper  rather  rejoices  at  the  prospect  of  a  civil  action  for  libel  being 
brought  against  him.     He  regards  it  as  a  gratuitous  advertisement  for  his 

1  R.  V.  DuQy,  2  Cox,  C.  C.  45. 

2  K.  V.  TowusuiiJ,  4  F.  &  F.  1089  ;  10  Cox,  C.  C.  356  ;  R.  v.  Sir  Robert  Carden, 
5  Q.  B.  U.  1  ;  49  L.  J.  M.  C.  1  ;  23  W.  R.  133  ;  41  L.  T.  504  ;  14  Cox,  C.  C.  359. 

(«)  Upon  this  subject  of  the  truth  of  Houston,  19  Kans.  417.     The  exception  in 

the   charge   see  2   Wharton,   Ciim.    Law,  the  Massachusetts  statute  of  iiijel  tliat  the 

§§  1643-1647  ;  State  v.  Buruhani,  9  N.  H.  truth  shall  be  deemed  a  justification  "  un- 

34  ;  Commonwealth  v.  Blanding,  3  Pick,  less  malicious  intention  shall  l-e  proved  " 

304  ;  Conuuonwealth  v.  Snelling,  15  Pick,  apiilies  to  civil  as  well  as  to  criminal  cases. 

337  ;  State  v.  Allen,  1  McCord,  525  ;  Gage  Perry  v.  Porter,  124  Jlass.  338. 
V.    Robinson V  12   Ohio,    250 ;    Castle  v. 

341 


*  390  CRIMINAL   LAW. 

paper,  calculated  to  increase  its  circulation  in  these  degenerate  days.  It  is 
clear,  therefore,  that  there  must  be  a  criminal  as  well  as  a  civil  remedy 
for  libel. 

But  is  it  essential  that  there  should  be  tivo  criminal  remedies'?     Having 

regard  to  the  number  of  criminal  prosecutions  for  libel  in  the  present  day, 

and  to  the  recent  decision  in  Labouchere's  case,^  it  deserves  con- 

*  391    sideration  whether  *  the  remedy  by  indictment  —  involving  as  it 

does,  a  triple  investigation  of  the  charge,  before  the  magistrate,  the 
grand  jury,  and  the  petty  jury  —  might  not  be  abolished.  The  remedy  by 
way  of  criminal  information  would  insure  the  punishment  of  all  offenders 
in  whose  conviction  the  public  were  interested,  while  the  numerous  petty 
indictments  for  libel  which  are  obviously  vexatious,  and  tendered  solely 
through  personal  malice  and  ill  will,  would  be  discouraged  and  gradually 
disa^ipear.  Moreover,  on  the  argument  of  the  rule,  the  defendant  himself 
may  make  an  affidavit,  whereas  in  proceeding  by  indictment,  the  defend- 
ant's mouth  is  more  or  less  closed.  If  one  or  two  of  the  rules  relating  to 
criminal  information  were  altered,  especially  that  compelling  the  relator  to 
forego  his  civil  action,  I  think  it  would  be  found  that  the  lesser  criminal 
remedy  might  safely  be  dispensed  with,  and  that  no  ofi'ender,  whose  publi- 
cations were  a  serious  outrage  on  society,  would  escape  the  punishment  he 
so  justly  merited,  although  the  number  of  prosecutions  would  thereby  be 
greatly  diminished. 

Since  the  above  remarks  were  written,  the  Select  Committee  of  the 
House  of  Commons  appointed  to  inquire  into  the  Law  of  Newspaper  Libel, 
have  published  a  Eeport  in  which  they  recommend  "  that  no  criminal 
prosecution  shall  be  commenced  against  the  proprietor,  publisher,  editor, 
or  any  one  responsible  for  the  publication  of  a  newspaper,  for  any  libel 
published  therein,  without  the  Jiat  of  the  Attorney-General  being  first 
obtained."  No  doubt  in  this  way  a  certain  number  of  frivolous  prosecu- 
tions might  be  prevented.  But  I  doubt  if  the  Attorney-General  would 
approve  of  so  serious  an  addition  to  his  aiready  arduous  duties.  For  I 
conceive  it  would  be  the  duty  of  the  Attorney-General,  under  the  new 
system,  to  go  into  the  facts  of  each  case,  and  to  carefully  consider  whether 
or  no  it  would  be  for  the  public  benefit  that  this  particular  defendant 
should  be  jirosecuted.  Unless  he  did  so,  the  new  rule  would  soon  become 
nugatory,  and  the  fiat  would  be  granted  whenever  the  words  amounted  to 
a  libel  in  law.  The  recommendation  of  the  Committee  is  confined,  it  will 
be  observed,  to  the  proprietors  and  editors  of  newspapers.  Why  should 
it  not  be  extended  to  all  cases  of  constructive  publication  1  Surely  a 
master-printer,  or  a  bookseller,  should  be  included ;  and  why  not  the 
publisher  of  a    book  as  well  as  of  a  newspaper]      But   supposing   the 

1  K.  V.  CarJeii,  supra. 

342 


REMEDIES   FOR   LIBEL.  *392 

Committee  *  to  have  cousidered  themselves  restricted  to  the  Law  *  392 
of  Newspaper  Libel,  they  have  included  one  person  who  it  seems 
to  me  deserves  no  protection,  and  that  is  the  acting  editor,  the  person 
actually  in  charge  of  the  paper  at  the  time  of  publication.  It  is  his  fault 
that  the  libel  appeared  ;  he  professes  to  understand  his  business ;  he  is 
paid  by  his  employers  to  supervise  the  paper  and  exclude  all  libels ;  and  if 
through  carelessness  or  ignorance  he  omits  to  do  his  duty,  he  deserves 
punishment,  at  least  as  much  as  a  medical  man  who,  through  culpable 
negligence,  kills,  when  he  might  have  cured,  a  patient.  The  Committee 
very  properly  gi-ant  no  immunity  to  the  actual  composer  and  author  of 
the  libel. 

There  will  be  some  difficulty  in  working  out  the  recommendation  of  tlie 
Committee.  Is  the  Attorney-General  to  hear  only  the  prosecutor's  story  1 
If  so,  in  most  cases  nothing  will  be  easier  than  for  an  angry  and  vindictive 
prosecutor  to  obtain  the^a^  on  an  ex  parte  statement.  In  cases  of  libel, 
malignant  feelings  are  perhaps  more  thoroughly  aroused  than  in  any  other 
criminal  proceedings.  And  even  where  the  prosecutor  would  scruple  to 
mislead  the  law  officer  of  the  Crown,  he  may  bond  fide  and  on  good  grounds 
believe  an  innocent  man  to  be  the  author  of  the  libel  of  which  he  com- 
plains, as  in  the  recent  case  of  Sir  Francis  Truscott ;  or  he  might  honestly 
assert  that  the  defendant  was  the  acting  editor  of  a  newspaper  at  the  time 
of  publication,  whereas  he  was  then  away  ill  in  the  country,  as  was  Mr. 
Gutch.-^  Without  calling  on  the  defendant  for  his  version  of  the  case,  the 
Attorney-General  could  not  refuse  h\^  fiat  in  such  cases  as  E.  v.  Ledger,^  or 
as  Lambri's  case,  or  as  R.  v.  Truscott.  Yet  if  the  Attorney-General  is  to 
hear  both  sides  and  thoroughly  investigate  the  matter,  he  is  doing  infor- 
mally precisely  what  the  Court  of  Queen's  Bench  would  do  before  allowing 
a  criminal  information  to  be  filed.  And  surely  if  the  Attorney-General 
granted  a  fiat,  it  would  be  quite  unnecessary  tliat  the  matter  should  be 
again  investigated  before  a  police  magistrate.  It  cannot  be  necessary  that 
tlie  case  should  be  gone  mio  four  times  :  once  before  the  Attorney-General, 
next  before  a  magistrate,  then  before  the  grand  jury,  and  lastly  in  open 
court  before  the  petty  jury.  Omit,  therefore,  the  hearings  before  the 
magistrate  and  the  grand  jury,  and  let  the  case  proceed  direct  to 
the  trial  in  open  court,  as  soon  as  the  fiat  has  *  been  obtained  :  *  393 
and  what  is  the  procedure  so  devised,  but  an  exact  reproduction  of 
the  ex  officio  information  %  It  is  no  uncommon  experience  to  those  who 
study  the  suggestions  of  would-be  law-reformers  to  discover  that  the 
schemes  which  they  advocate  as  novel  expedients  certain  to  cure  some 
crying  evil,  are  but  resuscitations  of  ancient  methods  of  jirocedure,  wliich 
doubtless  for  some  good  reason  have  long  ago  fallen  into  disuse.     I  venture 

1  Ante,  p.  364.  '  3  ^,i/e^  p.  50. 

343 


*393  CEBIINAL  LAW. 

therefore  to  retain  my  former  opinion,  expressed  atove,  that  the  best 
method  of  avoiding  the  difficulty  would  be  by  abolishing  altogether  indict- 
ments for  defamatory  libels,  and  by  allowing  criminal  informations  to  be 
filed  in  all  cases  wherein  the  Court  shall  be  of  opinion  that  the  civil  remedy 
by  action  is  an  insufficient  protection  to  the  public. 
344 


*  CHAPTER  XIV.  *394 

BLASPHEMOUS    WORDS. 

It  is  a  misdemeanor,  punishable  by  indictment  and  by  criminal 
information,  to  speak,  or  write  and  publish,  any  profane  words 
vilifying  or  ridiculing  God,  Jesus  Christ,  the  Holy  Ghost,  the 
Old  or  New  Testament,  or  Christianity  in  general,  {a)  with  intent 
to  corrupt  the  public  morals,  to  shock  and  insult  believers,  or  to 
l)ring  the  established  religion  into  hatred  and  contempt.  This  is 
the  crime  of  blasphemy,  and  on  conviction  thereof  the  blasphemer 
may  be  sentenced  to  fine  and  imprisonment  to  any  extent,  in  the 
discretion  of  the  Court.  Formerly  he  was  frequently  also  sen- 
tenced to  the  pillory  or  to  banishment.^  He  may  also  be  re- 
quired to  give  security  for  his  good  behavior  for  any  reasonable 
time  after  he  comes  out  of  prison  ;  and  can  be  detained  in  prison 
till  such  sureties  be  found.^  Also  under  the  60  Geo.  III.  and  1 
Geo.  IV.  c.  8,  s.  1,  the  Court  may  after  conviction  make 
an  order  *  for  the  seizure  of  copies  of  the  blasphemous  *  395 
libel  in  the  possession  of  the  prisoner  or  in  the  possession 
of  any  person  to  his  use.^ 

The  intent  to  corrupt  the  public  morals,  to  shock  and  insult 
believers,  or  to  bring  the  established  religion  into  hatred  and  con- 

1  In  Scotland  up  till  the  year  1813  blasphemy  was  in  certain  circumstances  a  capi- 
tal offence.  The  last  person  executed  for  blasphemy  appears  to  have  been  Thomas 
Aikenhead,  a  young  student  just  twenty  years  of  age,  and  the  son  of  a  surgeon  in 
Edinburgh ;  he  seems  to  have  been  veiy  harshly,  if  not  illegally,  treated  ;  no  counsel 
appeared  for  him  :  his  crime  consisted  in  loose  talk  about  Ezra  and  in  crude  anticipa- 
tions of  Materialism.  He  was  hanged  on  January  8th,  1697,  buried  beneath  the  gal- 
lows, and  all  his  movables  forfeited  to  the  ('rown. 

'^  Thomas  Emlyn,  in  1703,  and  Richard  Carlile,  in  1820,  were  condemned  to  find 
sureties  for  their  good  behavior  througliout  the  remainder  of  their  lives. 

3  See  the  Statute  in  Appendix  C.  2^ost,  p.  669. 

(a)  2  Wharton,  Crim.  Law,  §  1605  (8th  Updegraff  v.   Commonwealth,  11    Serg.  & 

ed.)  ;  citing  Commonwealth  v.  Kneeland,  R.  394  ;  State  ?;.  Chandler,  2  Harr.  (Del.) 

20  Pick.  206  ;  Chapman  v.  Gillett,  2  Conn.  553.     See  Vidnl  v.  Oinird,  2  How.  198. 
41  ;    People   v.    Ruggles,    8   Johns.    290  ; 

345 


*395  BLASPHEMOUS   WORDS. 

tempt,  is  an  essential  element  in  the  crime.  Actus  non  facit 
reum,  nisi  mens  sit  rea.  The  existence  of  such  an  intent  is  a 
question  of  fact  for  the  jury,  and  the  onus  of  proving  it  lies  on  the 
prosecution.  The  best  evidence  of  such  an  intention  is  usually 
to  be  found  in  the  work  itself.  If  it  is  full  of  scurrilous  and  op- 
probrious language,  if  sacred  subjects  are  treated  with  offensive 
levity,  if  indiscriminate  abuse  is  employed  instead  of  argument, 
then  a  malicious  design  to  wound  the  religious  sensibilities  of 
others  may  be  readily  inferred.  If,  however,  the  author  abstains 
from  ribaldry  and  licentious  reproach,  a  similar  design  may  still 
be  infeired  if  it  be  found  that  he  has  deliberately  had  resort  to 
sophistical  arguments,  that  he  has  wilfully  misrepresented  facts 
within  his  knowledge,  or  has  indulged  in  sneers  and  sarcasms 
against  all  that  is  good  and  noble  ;  for  then  it  is  clear  that  he  does 
not  write  from  conscientious  conviction,  but  desires  to  pervert 
and  mislead  the  ignorant ;  or  at  all  events  that  he  is  criminally 
indifferent  to  the  distinctions  between  right  and  wrong.  But  even 
though  the  work  is  free  from  all  offensive  levity,  sarcasm,  and 
sophistry,  and  is  in  fact  the  honest  and  temperate  expression  of 
the  religious  opinions  conscientiously  held  and  avowed  by  the 
writer,  still  it  does  not  follow,  as  our  law  at  present  stands,  that 
the  author  should  be  acquitted.  It  will  still  be  the  duty  of  the 
Judge  to  consider  what  would  be  the  effect  of  a  general  dissemi- 
nation of  those  opinions.  If  the  doctrines  maintained  are 
*  396  so  monstrous  that  their  direct  tendency  *is  -to  subvert  re- 
ligion, to  destroy  morality,  and  "  to  dissolve  all  the  bonds 
and  obligations  of  civil  society,"  then  the  maxim  applies  that 
"  Every  man  must  be  taken  to  have  intended  the  natural  and 
necessary  consequences  of  his  act,"  and  the  Judge  will  direct  a 
conviction. 

It  is  very  difficult,  however,  to  say  in  what  cases  a  judge  in  the  present 
day  would  feel  it  his  duty  so  to  direct  the  jury.  Every  one  would  natu- 
rally be  reluctant  to  construe  into  a  crime  the  fair  and  temperate  expression 
of  opinions  sincerely  entertained,  merely  in  obedience  to  a  legal  presump- 
tion. And  it  may  well  be  doubted  whether  the  free  discussion  of  any 
doctrines,  however  heretical,  can  in  any  case  tend  to  subvert  the  Truth. 
"  For,  if  we  be  sure  we  are  in  the  right,"  says  Milton  in  his  Areopagitica,!  "  and 
do  not  hold  the  truth  guiltily,  which  becomes  not,  ....  what  can  be  more 
fair  than  when  a  man  judicious,  learned,  and  of  a  conscience  for  aught  we 

1  P.  65,  Arber's  Reprint. 

346 


SPECL/VL   INTENT.  *  396 

know  as  good  as  theirs  that  taught  us  what  we  know,  shall  ....  openly 
by  writing  publish  to  the  world  what  his  opinion  is,  what  his  reasons,  and 
wherefore  that  which  is  now  taught  cannot  be  sound  1 "  Magna  est  Veritas 
et  prcevalebit.  And  it  may  also  be  doubted  how  far  the  reported  decisions 
would  bind  a  judge  in  the  present  day.  For  the  heretical  writings  of  the 
last  century  were  written  as  a  rule  by  uneducated  and  immoral  men,  and 
were  filled  with  foul  and  oflPeusive  passages,  and  were  therefore  deservedly 
punished  :  whereas  in  the  present  day  heretical  opinions  are  often  held  and 
advocated  by  men  of  culture  and  rehnement,  who  instinctively  avoid  giving 
wanton  ofi'ence  to  their  more  orthodox  fellow-citizens.  Again,  there  is  one 
argument  frequently  adduced  in  the  earlier  cases  in  favor  of  prosecutions 
for  blasphemy  —  that  all  attacks  upon  the  established  religion  tend  to  de- 
stroy the  solemnity  of  an  oath  "on  which  the  due  administration  of  justice 
depends,"  and  thus  "  the  law  will  be  stripped  of  one  of  its  principal  sanc- 
tions—  the  dread  of  future  punishment."  The  strength  of  this  argument 
is  now  seriously  impaired  by  the  Acts  recently  passed,  permitting  even 
atheists  and  persons  who  do  not  believe  in  a  future  life  to  give  evi- 
dence in  our  law  courts.^  *  But  from  the  decided  cases,  it  would  *  397 
seem  that  "  Christianity  is  part  and  parcel  of  the  law  of  England."  ^ 
At  all  events,  it  is  the  established  religion  of  the  land.  Hence  to  attack 
Christianity  in  general  by  striking  at  its  very  roots  cannot  fail,  it  is  con- 
sidered, to  wound  the  religious  feelings  of  others  and  to  excite  hatred  and 
contempt  against  the  Church.^  Again,  to  deny  the  existence  or  goodness  of 
God  must  tend  to  subvert  all  law  and  all  morality,  and  to  destroy  the  peac3 
and  good  order  of  society.  In  these  two  cases,  therefore,  even  in  the  absence 
of  any  indecent  or  offensive  expressions,  the  jury  would  still  probably  be 
directed  that  a  criminal  intent  must  be  presumed,  although  it  is  clear  that 
the  author's  purpose  was  the  bond  fide  dissemination  of  his  peculiar  vievcs. 
But  in  all  other  cases  I  think  that  the  jury  would  be  told  that  the  intent 
to  subvert  religion,  and  to  deprave  the  public  morals,  must  be  proved  as  a 
fact  to  their  satisfaction  before  they  can  convict ;  and  that  if  they  are  ot 
opinion  that  the  author's  attack  on  some  particular  doctrine,  however  gen- 
erally accepted  and  received,  was  made  honestly  with  the  conscientious  de- 
sire of  arriving  at  the  truth,  then  the  prisoner  is  entitled  to  an  acquittal. 

1  See  the  1  &  2  Vict.  c.  105,  s.  1  ;  32  &  33  Vict.  c.  68,  s.  4  ;  33  &  34  Vict.  c.  49, 
s.  1. 

2  Per  Kelly,  C.B.,  L.  R.  2  Ex.  234.  Lord  Hale  first  uttered  this  dictum  in  R.  v. 
Taylor,  1  Ventr.  293  ;  3  Keb.  607.  It  was  repeated  hy  Ashurst,  J.,  in  R.  v.  Williams, 
and  by  many  other  judges.  But  Archbishop  "Whately  said  he  never  could  understand 
its  precise  meaning,  and  tlie  Commissioners  on  Criminal  Law  (6th  Report,  p.  83)  have 
done  their  best  to  explain  it  away.  See  also  Jefferson's  Letter  to  Major  Cartwright, 
published  in  Cartwright's  "  Life  and  Correspondence." 

8  R.  V.  Woolston,  Str.  834  ;  Fitzgib.  66 ;  1  Barnard.  162. 

347 


*397  BLASPHEMOUS   WORDS. 

In  all  cases  in  which  a  criminal  intent  is  not  presumed  under 
the  maxim  mentioned  above,  it  is  not  blasphemy  to  seriously  and 
reverently  propound  any  opinions  conscientiously  entertained  by 
the  accused.  Honest  error  is  no  crime  in  this  country  so  long  as 
its  advocacy  be  rational  and  dispassionate  and  do  not  degenerate 
into  fanatical  abuse  of  Christianity  in  general,  or  into  scuriilous 

attacks  upon  individuals.  "Every  man  may  fearlessly 
*  398    *  advance  any  new  doctrines,  provided  he  does  so  with 

proper  respect  to  the  religion  and  government  of  the 
country."  ^  "  I  would  have  it  taken  notice  of  that  we  do  not  med- 
dle with  any  differences  of  opinion,  and  that  we  interpose  only 
where  the  very  root  of  Christianity  is  struck  at."  ^ 

The  defendant  cannot  plead  a  justification  :  nor  can  he  be  per- 
mitted at  the  trial  to  argue  that  his  blat^phemous  libel  is  true.^ 

The  last  trial  for  blasphemy  took  \Aace  at  the  Bodmin  Summer  Assizes, 
July,  1857,  before  Coleridge,  J.,  liis  son,  the  present  Lord  Coleridge,  C.J., 
being  counsel  for  the  prosecution.  The  prisoner  had  scribbled  some  dis- 
gusting language  concerning  Jesus  Christ  on  a  gate,  and  was  convicted  of  a 
blasphemous  libel,  but  was  subsequently  discovered  to  be  insane.* 

Illustrations. 

Tt  is  WaspTiemy  to  write  and  publish  that  Jesus  Christ  is  an  impostor,  the  Christian 
reli-^iou  a  mere  table,  and  those  who  believe  in  it  infidels  to  God.  K.  v.  Eaton,  31 
Howell's  St.  Tr.  927. 

It  is  blasphemy  to  write  and  publish  that  Jesus  Christ  was  an  impostor,  a  murderer 
in  principle,  and  a  fanatic.  Such  words  would  be  libellous  of  whomsoever  written,  and 
the  jury  also  had  found  as  a  fact  that  the  intention  of  the  prisoner  was  malicious ;  and 
the  court  on  motion  refused  to  arrest  the  judgment.     R.  v.  Waddington,  1  B.  &  C.  26. 

In  the  last  case  Abbott,  C.J.,  parried  a  question  asked  him  by  one  of  the  jurymen 
at  the  trial  whether  every  publication  which  denied  the  divinity  of  Jesus  Christ  was  an 
unlawful  libel,  and  the  Court  of  King's  Bench  gave  no  opinion  on  the  point :  it  was 
unnecessary  so  to  do.  I  apprehend,  however,  that  a  controversial  work  in  which  a 
Unitarian  divine  while  expressing  his  reverence  for  Christ  as  a  Great  Teacher  yet  de- 
nied His  Deity,  would  never  in  the  present  day  be  deemed  blasphemous,  if  written  in 
a  reverent  and  temperate  tone  and  expressing  the  conscientious  convictions  of 
*  399  the  author  (in  spite  of  such  cases  as  R.  v.  Clendon  (1712),  cited  *  2  Str.  789  ; 
R.  V.  Hall  (1721),  1  Str.  416,  and  R.  v.  Hive  (1756),  Dig.  L.  L.  83). 

Reflections  on  the  old  Testament  are  as  bad  as  on  the  New.  R.  v.  Hetherington, 
5  Jur.  529. 

1  Per  Best,  J.,  in  R.  v.  Burdett  (1820),  4  B.  &  Aid.  132. 

2  Per  Raymond,  C.J.,  in  R.  v.  Woolston  (1729),  Str.  834  ;  Fitzgib.  66  ;  1  Barn- 
ard. 162. 

8  Per  Lord  Abbott,  C.J.,  in  Cooke  v.  Hughes,  R.  k  M.  115.        *  R.  r.  Pooley. 

348 


BLASPHEISIY.  *  399 

Queen  Meih  was  found  by  a  jury  in  1841  to  be  a  blasphemous  libel.  R.  v.  Moxon, 
2  Mod.  St.  Tr.  356. 

But  this  prosecution  was  a  purely  vindictive  one  by  Hetherington,  and  no  sentence 
was  ever  jiassed.  Blackburn,  J.,  expresses  his  disapproval  of  their  finding  in  K.  v. 
Hicklin,  L.  R.  3  Q.  B.  374  ;  37  L.  J.  M.  C.  89  ;  16  W.  R.  803  ;  11  Cox,  C.  C.  19  ; 
18  L.  T.  395. 

To  deliver  a  lecture  i>ublicly  maintaining  that  the  character  of  Christ  is  defective, 
and  his  teaching  misleading,  and  that  the  Bible  is  no  more  inspired  than  any  other 
book,  was  held  blasphemy  by  the  Court  of  Exchequer  without  any  regard  to  the  style 
of  the  lecture,  or  the  religious  convictions  of  the  lecturer.  [But  that  was  a  civil  case 
in  which  tlie  criminal  intention  might  not  be  considered  so  essential.]  Cowan  v.  Mil- 
bourn,  L.  R.  2  Ex.  230  ;  36  L.  J.  Ex.  124  ;  15  W.  R.  750  ;  16  L.  T.  290. 

To  write  and  publish  that  the  Christian  miracles  were  not  to  be  taken  in  a  literal 
but  in  an  allegorical  sense  was  held  blasphemous  in  1729  ;  but  there  the  Court  clearly 
considered  that  to  attack  the  miracles  was  to  attack  Christianity  in  general,  and  could 
not  be  included  amongst  "disputes  between  learned  men  upon  particular  controverted 
points."     R.  V.  AVoolston,  2  Str.  834  ;  Fitz.  66  ;  1  Barnard.  162. 

It  was  held  blasphemy  to  publish  or  sell  Paine's  "Age  of  Reason."  R.  v.  Wil- 
liams (1797),  26  Howell's  St.  Tr.  656  ;  R.  v.  Richard  Carlile  (1819),  3  B.  &  Aid.  161 ; 
1  Chit.  451. 

Richard  Carlile  on  his  trial  read  over  to  the  jury  the  whole  of  Paine's  "  Age  of  Rea- 
son," for  selling  which  he  was  indicted.  After  his  conviction,  his  wife  published  a  full, 
true,  and  accurate  account  of  his  trial,  entitled  "The  Mock  Tiial  of  Mr.  Carlile,"  and 
in  so  doing  republislied  the  whole  of  the  "Age  of  Reason  "  as  a  part  of  the  proceedings 
at  the  trial.  Held,  that  the  privilege  usually  attaching  to  fair  reports  of  judicial  pro- 
ceedings did  not  extend  to  such  a  colorable  reproduction  of  a  blasphemous  book  ;  and 
that  it  is  unlawful  to  publish  even  a  correct  account  of  the  proceedings  in  a  court  of 
justice,  if  such  an  account  contain  matter  of  a  scandalous,  blasphemous,  or  indecent 
nature,  R.  v.  Mary  Carlile  (1819),  3  B.  &  Aid.  167.  See  also  Steele  v.  Brannan,  L. 
K.  7  C.  P.  261  ;  41  L.  J.  M.  C.  85  ;  20  W.  R.  607  ;  26  L.  T.  509  ;  post,  p.  407. 

For  other  cases  of  blasphemy  at  common  law,  see  R.  v.  Atwood  (1618),  Cro.  Jac. 
421  ;  R.  V.  Taylor,  Ventris,  293  ;  3  Keble,  60?  ;  R.  v.  Annet  (1763),  3  Burn,  Eccl. 
Law,  386,  9th  ed. ;  R.  v.  Wilkes  (1763),  4  Burr.  2527  ;  2  Wils.  151  ;  Patersou's  Case 
(1843),  1  Brown  (Scotch),  629  ;  Robinson's  Case  (1843),  ih.  643. 

*  In  aid  of  the  common  law,  many  statutes  have  at  dif-    *  400 
ferent  times  been  passed  to  punish  particular  species  of 
blasphemy.      Of   these    the   following   appear  to  be  still  unre- 
pealed :  — 

"  Whatsoever  person  or  persons  shall  deprave,  despise,  or  con- 
temn the  most  blessed  Sacrament  in  contempt  thereof  by  any 
contemptuous  words  or  by  any  words  of  depraving,  despising,  or 
reviling,  or  what  person  or  persons  shall  advisedly  in  any  other- 
Avise  contemn,  despise,  or  revile  the  said  most  blessed  Sacrament, 
shall  suffer  imprisonment  of  his  or  their  bodies  and  make  fine  and 
ransom  at  the  king's  will  and  pleasure."  ^ 

1  1  Edw.  VI.  c.  1,  s.  1. 

349 


*400  BLASPHEMOUS   WORDS. 

"  Any  vicar  or  other  minister  whatsoever  that  shall  preach,  de- 
clare, or  speak  anything  in  the  derogation  or  depraving  of  the 
Book  of  Common  Prayer,  or  anything  therein  contained,  or  of 
any  part  thereof,"  shall  on  conviction  for  the  first  offence  suffer 
forfeiture  of  one  year's  profit  of  benefices  and  six  months'  im- 
prisonment, and  for  the  second  offence,  one  year's  imprisonment 
and  deprivation,  and  for  the  third  offence,  deprivation  and  im- 
prisonment for  life  :  or,  if  not  beneficed,  for  the  first  offence 
imprisonment  for  one  year,  and  for  the  second  offence  imprison- 
ment for  life.^ 

Any  person  whatsoever,  lay  or  clerical,  who  "  shall  in  any  in- 
terludes, plays,  songs,  rhymes,  or  by  other  open  words,  declare 
or  speak  anything  in  the  derogation,  depraving,  or  despising  of 
the  same  book,  or  of  anything  therein  contained,  or  any  part 
thereof,"  shall  for  the  first  offence  forfeit  one  hundred  marks,  for 
the  second  offence  four  hundred  marks,  and  for  the  third  offence 
shall  forfeit  all  his  goods  and  chattels  to  the  Queen  and  be  im- 
prisoned for  life.^ 
*  401  *  These  provisions  are  applied  to  our  present  Book  of 
Common  Praj^er  by  the  14  Car.  II.  c.  4,  s.  1. 

Every  person  ecclesiastical,  who  shall  persist  in  maintaining  or 
affirming  any  doctrine  directly  contrary  or  repugnant  to  any  of 
the  Articles  agreed  on  in  the  Convocation  holden  at  London  in 
1562,  shall  be  deprived  of  his  living.^ 

The  statute  3  Jac.  I.  c.  21,  as  to  players,  was  repealed  in  1843 
by  the  6  &  7  Vict.  c.  68,  s.  1. 

"  If  any  person,  having  been  educated  in,  or  at  any  time  having 
made  profession  of,  the  Christian  religion  within  this  realm,  shall 
by  writing,  printing,  teaching,  or  advised  speaking,  assert  or 
maintain  that  there  are  more  Gods  than  one,  or  shall  deny  the 
Christian  religion  to  be  true,  or  the  Holy  Scriptures  of  the  Old 
and  New  Testament  to  be  of  divine  authority,"  he  shall,  on  con- 
viction by  the  oath  of  two  or  more  credible  witnesses,  be  deprived 
of  all  offices,  civil,  ecclesiastical,  and  military,  unless  he  renounce 
his  errors  within  four  months  from  the  date  of  his  conviction ; 
and  for  a  second  offence  he  shall  be  declared  unable  to  sue  in  any 
court  of  law  or  equity,  to  be  a  guardian,  an  executor  or  adminis- 
trator, to  take  any  legacy,  or  to  hold  any  office,  and  shall  also 

1  2  &  3  Edw.  VI.  c.  1,  s.  2  ;  1  Eliz.  c.  2,  s.  2. 

2  2  &  3  Edw.  VI.  c.  1,  s.  3  ;  &  1  Eliz.  c.  2,  s.  3.  s  13  Eliz.  c.  12,  s.  2. 

350 


ECCLESIASTICAL   COUllTS.  *  401 

suffer  imprisonment  for  three  years.  But  information  must  be 
given  on  oath  to  a  magistrate  within  four  days  after  such  words 
were  spoken,  and  the  prosecution  must  be  within  three  months 
after  such  information. ^ 

But  these  statutes  do  not  affect  or  alter  the  common  hiw ;  "-^ 
nor  will  their  repeal.^ 

By  the  Burial  Laws  Amendment  Act,  1880,*  any  person 
who  shall  at  any  burial  *  under  the  Act,  "  under  color  of  *  402 
any  religious  service  or  otherwise,  in  any  churchyard  or 
graveyard,  wilfully  endeavor  to  bring  into  contempt  or  obloquy 
the  Christian  religion,  or  the  belief  or  worship  of  any  church  or 
denomination  of  Christians,  or  the  members  or  any  minister  of 
any  such  churcli  or  denomination,  or  any  other  person  shall  be 
guilty  of  a  misdemeanor." 

In  former  days  the  ecclesiastical  courts  were  empowered  by  the  canon 
law  and  various  statutes  to  punish  with  penance  and  excommunication,  and 
even  with  imprisonment  and  death,  any  person  guilty  of  blasphemy,  heresy, 
and  schism.  But  by  the  1  Eliz.  c.  1,  s.  6,  all  statutes  relating  to  heresy 
M^ere  repealed ;  and  by  the  29  Car.  II.  c.  9,  s.  1,  the  writ  de  hceretico  com- 
hurendo  was  abolished ;  but  s.  2  of  the  same  Act  expressly  provides  "  that 
nothing  in  this  Act  shall  extend,  or  be  construed  to  take  away  or  abridge 
the  jurisdiction  of  Protestant  archbishops  or  bishops,  or  any  other  judges  of 
any  ecclesiastical  courts,  in  cases  of  atheism,  blasphemy,  heresy,  or  schism, 
and  other  damnable  doctrines  and  opinions,  but  that  they  may  proceed  to 
punish  the  same  according  to  His  Majesty's  ecclesiastical  laws,  by  excom- 
munication, deprivation,  degradation,  and  other  ecclesiastical  censures,  not 
extending  to  death,  in  such  sort  and  no  other  as  they  might  have  done  be- 
fore the  making  of  this  Act,  anything  in  this  law  contained  to  tlie  contrary 
in  anywise  notwithstanding."  By  the  53  Geo.  III.  c.  127,  s.  3,  it  is  en- 
acted  that  "  no  person  wlio  shall  be  pronounced  or  declared  excommunicate 
shall  incur  any  Civil  Penalty  or  Incapacity  whatever,  in  consequence  of 
such  Excommunication,  save  such  Imprisonment,  not  exceeding  Six  Months, 
as  the  Court  pronouncing  or  declaring  such  Person  Excommunicate  shall 
direct." 

But  no  blasphemous  publication,  which  is  punishable  in  the  secular 
courts,  can  be  taken  cognizance  of  in  the  ecclesiastical.  For  "  wliere  the 
common  or  statute  law  giveth  remedy  in  foro  seculari  (whether  the  matter 

1  9  Wm.  III.  c.  35  [c,  32  in  the  Statutes  at  Large],  as  amended  by  53  Geo.  III. 
c.  160. 

2  R.  V.  Carlile,  3  B.  &  Aid.  161  :  R.  v.  Williams,  26  Howell's  St.  Tr.  656. 

8  R.  V.  Waddington,  1  B.  &  C.  26.  *  43  &  44  Vict.  c.  41,  s.  7. 

351 


*402  BLASPHEMOUS   WORDS.       . 

be  temporal  or  spiritual)  the  conusance  of  that  cause  belongeth  to  the  King's 
temporal  Courts  only."  ^  It  is  then  only  over  blasphemous  libels, 
*  403  not  punishable  by  the  common  law  or  under  any  statute,  *  that  the 
ecclesiastical  courts  have  jurisdiction.  And  here  it  must  be  remarked 
that  the  canon  law,  speaking  generally,  is  not  binding  at  all  events  on 
laymen.  "  The  canon  law  forms  no  part  of  the  law  of  England,  unless  it 
has  been  brought  into  use  and  acted  upon  in  this  country  :  the  burden  of 
proving  which  rests  on  those  who  affirm  the  adoption  of  any  portion  of  it  in 
England."  ^  And  indeed  there  seems  strong  authority  for  holding  that  at 
the  present  day  the  Ecclesiastical  Courts  no  longer  possess  any  criminal 

jurisdiction  over  laymen.     In  Burder  v. ,^  Sir  H.  Jenner  Fust  says  : 

"  As  against  laymen,  whatever  may  be  the  nature  of  the  charge,  undoubt- 
edly the  Court  has  no  jurisdiction  to  entertain  a  criminal  suit."  And 
though  four  years  earlier  a  criminal  suit  was  commenced  against  a  layman. 
for  an  incestuous  marriage,  Dr.  Lushington  contented  himself  with  pro- 
nouncing the  marriage  null  and  void,  which  was  clearly  within  his  power, 
and  did  not  impose  any  punishment  or  penance  on  the  defendant.*  And 
in  PhiUimore  v.  Machon,^  Lord  Penzance  says  :  "  Speaking  generally,  and 
setting  aside  for  the  moment  all  questions  as  to  the  clergy,  it  cannot,  I 
think,  be  doubted  that  a  recurrence  to  the  punishment  of  the  laity  for  the 
good  of  their  souls  by  ecclesiastical  courts,  would  not  be  in  harmony  with 
modern  ideas,  or  the  position  which  ecclesiastical  authority  now  occupies 
in  the  country.  Nor  do  I  think  that  the  enforcement  of  such  powers,  where 
they  still  exist,  if  they  do  exist,  is  likely  to  benefit  the  community."  We 
may  consider,  therefore,  that  the  criminal  jurisdiction  of  the  ecclesiastical 
courts  over  libels  published  by  laymen  is  obsolete  :  their  jurisdiction  over 
civil  proceedings  for  defamation  is  expressly  taken  away  by  the  18  k  19 
Vict.  c.  41,  s.  1. 

1  Coke  upon  Littleton,  96  b.,  and  see  Phillimore  v.  Maclion,  1  P.  D.  481. 

2  Lord  Denman,  C.J.,  in  The  Queen  v.  The  Archbishop  of  Cauterbuiy,  11  Q.  B. 
649.  See  Year  Book,  34  H.  VL,  fo.  38  (1453) ;  Prisot  c.  5  ;  Fitzh.  Abr.  quare  imp. 
89  ;  Bro.  Abr.  qu.  imp.  12.  ^3  Cuvteis,  827,  May  31st,  1844. 

«  Woods  V.  Woods,  2  Curt.  516,  July  18th,  1840.  6  i  P.  D.  481. 

852 


♦CHAPTER  XV.  *404 

OBSCENE  WOEDS. 

It  is  a  misdemeanor  punishable  by  indictment  and  by  informa- 
tion to  publish  obscene  and  immoral  books  and  pictures :  (a)  for 
such  an  act  is  destructive  of  morality  in  general,  and  may  affect 
all  the  subjects  of  the  realm. 

The  test  of  obscenity  is  this :  — "  Whether  the  tendency  of 
the  matter  charged  as  obscenity  is  to  deprave  and  corrupt  those 
whose  minds  are  open  to  such  immoral  influences,  and  into  whose 
hands  a  publication  of  this  sort  may  fall."  ^ 

Similarly  it  is  a  crime  to  speak  vicious  and  immoral  words, 
provided  they  be  uttered  before  a  large  assembly,  so  as  to  affect 
the  mass  of  society :  for  else  there  is  no  detriment  to  the  public. 

Obscene  words  and  libels  are  apparently  within  the  jurisdiction 
of  Courts  of  Quarter  Sessions ;  not  being  excepted  by  the  5  & 
6  Vict.  c.  38. 

The  punishment  may  be  either  fine  or  imprisonment  for  a  term 
of  any  length,  and  either  with  or  without  hard  labor.^ 

Illustrations. 

Wilkes  was  fined  £500  and  imprisoned  for  a  year  for  printing  and  publishing  "An  Es- 
say on  Woman."    R.  v.  John  Wilkes,  4  Buit.  2527  ;  2  Wils.  151  ;  Dig.  L.  L.  69. 

*  Actors  have  been  prosecuted  for  performing  obscene  plays,  Trema}Tie's  405 
Entries,  209,  213,  214,  215  ;  Str.  790. 

The  obscene  words  must  be  set  out  in  the  indictment  verbatim.  Bradlaugh  & 
Besant  v.  The  Queen  (C.  A.),  3  Q.  B.  D.  607  ;  48  L.  J.  (M.  C.)  5  ;  26  W.  R.  410  ; 
38  L.  T.  118  ;  14  Cox,  C.  C.  68. 

"Obtaining  and  procuring"  obscene  works  for  the  purpose  of 
utterine:  and  selling^  them  is  a  misdemeanor  indictable  at  common 

1  Per  Cockbum,  C.J.,  in  R.  v.  Hicklin,  L.  R.  3  Q.  B.  371  ;  37  L.  J.  M.  C.  89  ;  16 
W.  R.  801  ;  18  L.  T.  395  ;  11  Cox,  C.  C.  19. 

2  14  &  15  Vict.  c.  100,  s.  29. 

{a)  2  Wharton,  Crim.  Law,  §  1606  (8th  Barker  v.  Commonwealth,  19  Penn.  412; 

ed.j,   citing  State  v.   Brown,   1  AVilliams  McNair  v.  People,  89  III.    441  ;    Bell  v. 

(Vt.);  Commonwealth  V.  Holmes,  17  Mass.  State,    1   Swan,    42.     See   also    People  r. 

336  ;  Kiiowles  v.  State,  3  Day,  103  ;  Com-  Girardiu,  1  Mich.  90. 
monwealth  v.  Sharpless,  2  Serg.  &  R.  91  ; 

23  353 


*405  OBSCENE  wor.DS. 

law ;  for  it  is  an  overt  act  taken  in  pursuance  of  an  unlawful 
intention:  but  merely  "preserving  and  keeping  them  in  one's 
possession"  for  the  same  purpose  is  not  indictable;  for  "there 
is  no  act  shown  to  be  done  which  can  be  considered  as  the  first 
step  in  the  prosecution  of  a  misdemeanor."  ^ 

By  the  20  &  21  Vict.  c.  83,  if  any  one  reasonably  believes  that 
any  obscene  books,  or  pictures,  are  kept  in  any  place  for  the 
purpose  of  being  sold  or  exhibited  for  gain,  he  may  make  a 
complaint  on  oath  before  the  police  magistrate,  stipendiary  mag- 
istrate, or  any  two  justices,  having  jurisdiction  over  such  place. 
The  magistrate  or  justices  must  be  satisfied :  — 

(i.)  That  such  belief  is  well  founded :  and  for  that  purpose 
the  complainant  must  also  state  on  oath  that  at  least  one  such 
book  or  picture  has  in  fact  been  sold  or  exhibited  for  gain  in 
such  place, 

(ii.)  That  such  book  or  picture  is  so  obscene  that  its  publica- 
tion would  be  a  misdemeanor. 

(iii.)  That  such  publication  would  be  a  misdemeanor  proper 
to  be  prosecuted  as  such. 

Thereupon  the  magistrate  or  justices  issue  a  special  warrant 
authorizing  their  officer  to  search  for  and  seize  all  such  books  and 
pictures,  and  bring  them  into  Court;  and  then  a  summons  is 
issued  calling  upon  the  occupier  of  the  jplace  to  appear 
*  406  and  show  cause  why  such  books  *  and  pictures  should  not 
be  destroyed.  Either  the  owner,  or  any  other  person 
claiming  to  be  the  owner,  of  such  books  and  pictures  may  ap- 
pear: but  if  no  one  appears,  or  if  in  spite  of  appearance  the  jus- 
tices are  still  satisfied  that  the  books  and  pictures,  or  any  of  them, 
are  of  such  a  character  that  their  publication  would  be  a  mis- 
demeanor proper  to  be  prosecuted,  they  must  order  them  to  be 
destroyed  ;  if  not  so  satisfied,  they  must  order  them  to  be  restored 
to  the  occupier  of  the"  place  in  which  they  were  seized.  The 
order  for  the  destruction  of  such  books  must  state,  not  only  that 
the  magistrate  is  satisfied  that  the  books  are  obscene,  but  also 
that  he  is  satisfied  that  the  publication  of  them  would  be  a  mis- 
demeanor, and  proper  to  be  prosecuted  as  such :  else  such  order 
will  be  bad  on  the  face  of  it,  as  not  showing  that  the  magistrate 

1  Per  Lord  Campbell,  C.J.,  iu  Dugdale  v.  Reg.,  Dears.  C.  C.  64  ;  1  E.  &  B.  425; 
22  L.  J.  M.  C.  50  ;  17  Jur.  546. 
354 


OBSCENE   WORDS.  *  406 

had  jurisdiction  to  make  it,  and  a  certiorari  will  be  granted,  in 
spite  of  the  2  &  3  Vict.  c.  71,  s.  49,  to  bring  it  up  and  quash  it.i 

Any  person  aggrieved  by  the  determination  of  the  justices  may 
appeal  to  Quarter  Sessions  by  giving  notice  in  writing  of  such 
appeal,  and  of  the  grounds  thereof,  and  entering  into  a  recogni- 
zance, within  seven  days  after  such  determination.  Hence  the 
books  and  pictures  ordered  to  be  destroyed  will  only  be  im- 
pounded during  such  seven  days;  on  the  eighth  clay,  if  no  notice 
of  appeal  be  given,  they  will  be  destroyed.  If  the  appeal  be 
dismissed,  or  not  prosecuted,  the  Court  of  Quarter  Sessions  may 
order  the  books  and  pictures  to  be  destroyed.^  The  death  of  the 
complainant  after  the  issuing  of  the  summons  will  not  cause 
the  proceedings  to  lapse.^ 

*If  the  work  be  in  itself  obscene,  its  publication  is  an    *407 
indictable  misdemeanor,  and  the  work  may  be  seized  under 
this  Act,  however  innocent  may  be  the  motive  of  its  publisher.'* 

If  any  point  of  law  arises  under  this  Act,  the  magistrates  or 
justices  may  state  a  case  for  the  opinion  of  a  Superior  Court, 
under  the  20  &  21  Vict.  c.  43,  irrespective  of  the  power  of  appeal 
given  b}''  s.  4.  That  the  libel  is  an  accurate  report  of  a  judicial 
proceeding  is  no  defence,  if  it  contain  matter  of  an  obscene  and 
demoralizing  character.^ 

Any  one  who  openly  exposes  or  exhibits  any  indecent  exhibi- 
tion or  obscene  prints  or  pictures  in  any  street,  road,  public  place 
or  highway,  or  in  any  window  or  other  part  of  any  house  situate 
in  any  street,  road,  public  place  or  highway,  shall  be  deemed  a 
rogue  and  vagabond,  and  punished  on  summary  conviction.^  The 
3  Geo.  IV.  c.  40,  s.  3,  is  repealed. 

By  the  33  &  34  Vict.  c.  79,  s.  20,  the  postmaster-general  may 
prevent  the  delivery  by  post  of  any  obscene  or  indecent  prints, 
photographs,  or  books. 

1  Ex  parte  Bradlaugh,  3  Q.  B.  D.  509  ;  47  L.  J.  M.  C.  105  ;  26  W.  E.  758  ;  38 
L.  T.  680. 

2  See  the  Act  in  cxtenso  in  Appendix  C,  post,  p.  680. 

8  R.  V.  Truelove,  5  Q.  B.  D.  336  ;  49  L.  J.  M.  C.  57  ;  28  W.  R.  413  ;  42  L.  T. 
250  ;  14  Cox,  C.  C.  408. 

*  R.  V.  Hicklin,  L.  R.  3  Q.  B.  371 ;  37  L.  J.  M.  C.  89  ;  16  "W.  R.  801  ;  18  L.  T. 
398  ;  11  Cox,  C.  C.  19. 

6  Steele  V.  Braunan,  L.  R.  7  C.  P.  261  ;  41  L.  J.  M.  C.  85  ;  20  W.  R.  607  ;  26 
L.  T.  509. 

6  5  Geo.  IV.  c.  83,  s.  4,  as  explained  by  the  1  &  2  Vict.  c.  38,  s.  2. 

355 


407  OBSCENE   WORDS. 


Illustrations. 

The  Protestant  Electoral  Union  published  a  book,  called  "The  Confessional  Un- 
masked," intended  to  expose  the  abuses  of  the  Roman  Catholic  discipline,  and  to  pro- 
mote the  spread  of  the  Protestant  religion.  But  however  praiseworthy  their  motive 
may  appeal-,  many  passages  in  the  book  were  necessarily  obscene,  and  it  was  seized  and 
condemned  as  an  obscene  libel.  R.  v.  Hicklin,  L.  R.  7  C.  P.  261 ;  37  L.  J.  M.  C.  89  ; 
16  W.  R.  801  ;  18  L.  T.  395  ;  11  Cox,  C.  C.  19. 

The  Protestant  Electoral  Union  thereupon  issued  an  expurgated  edition  of  "The 
Confessional  Unmasked,"  with  some  new  matter.     For  selling  this  George 
*  408     Mackey  was  tried  at  the  Winchester  Quarter  Sessions  on  Octobei-  19th,  *  1870, 
when  the  jury,  being  unable  to  agree  as  to  the  obscenity  of  the  book,  were 
discharged  without  giving  any  verdict.     The  Union  thereupon  published  "A  Report 
of  the  Trial  of  George  Mackey,"  in  whicli  they  set  out  the  full  text  of  the  second  edi- 
tion of  the  "  Confessional  Unmasked  ; "  although  it  had  not  been  read  in  open  court, 
but  only  taken  as  read,  and  certain  passages  in  it  referred  to.     A  police  magistrate 
thereupon  ordered  all  copies  of  this  "Report  of  the  Trial  of  George  Mackey"  to  be 
seized  and  destroyed  as  obscene  books.     Held,  that  this  decision  was  correct.     Steele 
V.  Brannan,  L.  R.  7  C.  P.  261 ;  47  L.  J.  M.  C.  85  ;  20  W.  R.  607 ;  26  L.  T.  509. 
356 


♦CHAPTER  XVI.  *409 

SEDITIOUS   WORDS. 

Seditious  words  may  be  defined  generally  in  the  words  of  60 
Geo.  III.  and  1  Geo.  IV.  c.  8,  s.  1,  as  any  words  which  tend  "  to 
bring  into  hatred  or  contempt  the  person  of  his  Majesty,  his  heirs 
or  successors,  or  the  Regent,  or  the  government  and  constitution 
of  the  United  Kingdom  as  by  law  established,  or  either  House  of 
Parliament,  or  to  excite  his  Majesty's  subjects  to  attempt  the 
alteration  of  any  matter  in  Church  or  State  as  by  law  established, 
otherwise  than  by  lawful  means." 

Seditious  words  may  in  some  special  cases  amount  to  Treason 
or  to  Treason-felony.    This  chapter  will,  therefore,  be  divided  iuto 

I.  Treasonable  Words. 

(i.)   Words  merely  spoken. 

(ii.)  Words  written  or  printed,  but  not  published, 
(iii.)  Words  written  or  printed,  and  published. 

II.  Seditious  Words. 

(i.)  Words  defamatory  of  the  Sovereign  himself. 
(ii.)  Words  defamatory  of  the  King's  Ministers  and  Govern- 
ment. 
*  (iii.)  Words  defamatory  of  the   Constitution  and  of    *  410 

our  Laws  generally. 
(iv.)  Words  defamatory  of  either  House  of  Parliament,  or  of 

the  members  thereof. 
(v.)  Words    defamatory   of  Courts   of   Justice,    and   of  the 
Judges  thereof. 

(«.)  Superior  Courts. 
(6.)   Inferior  Courts. 

357 


*  410  SEDITIOUS   WORDS. 

I.  Treason  and  Treason-Felony. 

(i.)  Words  merely  spoken  against  the  king  or  his  ministers  can- 
not amount  to  treason.  It  was  resolved  in  Hugh  Pine's  case^ 
(overruling  several  arbitrary  decisions  of  earlier  date),  "  that,  un- 
less it  were  by  some  particular  statute,  no  words  will  be  trea- 
son." ^  There  is  no  such  statute;  but  by  s.  3  of  the  11  &  12 
Vict.  c.  12,  to  express,  utter,  and  declare,  by  open  and  advised 
speakiny,  certain  traitorous  compassings,  imaginations,  inventions, 
devices,  or  intentions,  is  made  treason-felony .^ 

But  words  accompanyiny  any  act  may  be  given  in  evidence  to 
explain  the  intention  with  which  such  act  is  done. 

*  411        *  (ii.)  Words   written   or   printed,   but   not  puhUshed, 

cannot  be  treason  at  common  law :  and  they  do  not  con- 
stitute an  overt  act  of  treason  within  the  meaning  of  the  25  Edw. 
III.  c.  2.  The  decisions  to  the  contrary  in  R.  v.  Peacham  (1615),^ 
and  R.  v.  Algernon  Sidney  (1G83),^  were  reversed  by  a  private 
Act  of  Parliament  in  1689.6  g^t  by  the  6  Anne,  c.  7  (Al.  41), 
s.  1  ;  '  "  maliciously  advisedly  and  directly,  by  writing  or  print- 
ing, to  maintain  and  affirm,"  that  Queen  Anne  was  not  the  right- 
ful queen,  that  the  Pretender  or  any  else,  except  the  descendants 
of  the  Electress  Sophia,  had  any  right  or  title  to  the  Crown,  or 
that  an  Act  of  Parliament  could  not  bind  the  Crown,  and  limit 
the  descent  thereof,  was  made  high  treason  ;  and  it  does  not 
appear  that  any  pubhcation  was  requisite  to  complete  the  offence 
created  by  this  statute. 

(iii.)  But  a  writing  which  imports  a  compassing  the  king's 
death  witliin  the  meaning  of  25  Edw.  III.  c.  2,  will  amount  to  an 
overt  act  of  treason,  if  it  be  published. 

1  Cro.  Car.  117. 

2  The  story  so  frequently  repeated  that  in  the  reign  of  Edward  IV.,  Thomas  Burdett 
was  convicted  of  high  treason  for  saying  that  he  wished  the  horns  of  his  stag  in  the 
belly  of  him  who  had  advised  the  king  to  shoot  it  (though  it  is  still  to  be  found  in 
Blackstone,  vol.  iv.  c.  6,  and  Folkard,  p.  619),  has  been  proved  by  Hallam  to  be  myth- 
ical. The  charge  against  Burdett  was  of  a  much  more  serious  nature  ;  and  these  idle 
words  of  his  are  not  anywhere  alluded  to  in  the  indictment  against  him.  "Middle 
Ages,"  c.  viii.  ad  fin. 

8  See  the  section  in  Appendix.     The  words  in  italics  were  not  in  the  earlier  statutes 

to  the  same  effect. 

4  Cro.  Car.  125  ;  2  Cobbett's  St.  Tr.  870.  &  9  St.  Tr.  889,  893. 

6  See  Hallam's  Const.  Hist.  I.  467. 

7  Passed  in  1707,  probably  in  consequence  of  a  libel  called  "  Mercurius  Politicus  :" 
see  Pt.  V.  Brown,  Holt,  425  ;  11  Mod.  86,  post,  p.  421. 

358 


TREASON.  *  411 


Illustration. 


Williams,  a  barrister  of  the  Middle  Temple,  M-rote  two  books,  "  Balaam's  Ass  "  and 
the  "Speculum  Kegale,"  in  which  he  predicted  that  King  James  I.  would  die  in  tlie 
year  1621.  He  was  indicted  for  high  treason,  convicted,  and  executed.  E.  r.  Wil- 
liams, 2  RoUe  R.  88. 

By  the  36  Geo.  III.  c.  7,  made  perpetual  by  the  57  Geo.  III. 

c.  6,1  to  compass,  devise,  or  intend  death  or  wounding,  im- 
prisonment, or  bodily  harm  to  the  person  of  the  *  Sover-    *  412 
eign,  and  such  compassing,  device,  or  intention  to  express, 
utter,  or  declare,  hy  publishing  aiiy  printing  or  zvriting,  or  by  any 
overt  act  or  deed,  is  made  high  treason,  punishable  with  death. 

And  by  the  11  &  12  Vict.  c.  12,  s.  3,  to  compass,  devise,  and 
intend  to  depose  the  Queen,  or  to  levy  war  against  her  in  order 
by  force  or  constraint  to  compel  her  to  change  her  counsels,  or 
to  intimidate  either  House  of  Parliament,  or  to  stir  up  any 
foreigner  or  stranger  with  force  to  invade  any  of  her  dominions  ; 
and  such  compassings,  devices,  or  intentions,  or  any  of  them,  to 
express,  utter,  or  declare,  by  publishing  any  pri7iting  or  ivriting 
or  by  open  and  advised  speaking,  or  by  any  overt  act  or  deed, 
is  made  treason-felony,  punishable  with  transportation  (now 
penal  servitude)  for  life.^ 

II.  Sedition. 

It  is  a  misdemeanor,  punishable  by  indictment  or  by  informa- 
tion, to  libel  or  to  slander  the  Sovereign,  or  his  administration, 
or  the  Constitution  of  the  realm,  or  either  House  of  Parliament, 
or  its  members,  or  any  judge  or  magistrate.  It  is  also  a  high 
misprision  or  contempt  ;  and  therefore  the  defendant  may  be 
fined  to  any  amount,  or  sentenced  to  a  term  of  imprisonment  of 
any  length,  or  both,  at  the  discretion  of  the  Judge,  as  in  ;jr«?- 
munire.  (a)  Formerly  banishment  and  the  pillory  could  also  be 
inflicted  ;  but  these  punisliments  are  now  abolished.-^ 

The  offence  cannot  be  tried  at  Quarter  Sessions. 

1  As  amended  by  11  &  12  Vict.  c.  12,  s.  1. 

2  See  the  section  in  Appendix. 

3  60  Geo.  III.  and  1  Geo.  IV.  c.  8,  ss.  1,  2,  3,  4;  11  Geo.  IV.  &  1  Will.  IV.  c.  73, 
s.  1;  7  Will.  IV.  &  1  Vict.  c.  23. 

(a)  See  2  Wharton,  Grim.   Law,   §  1611  lica  ?\  Dennic,  4  Yeates,  270;    Common- 

(8th  ed.),  citing  Thomas   v.  Croswell,  7  wealth  v.  Meeser,  1  Brewst.  492  ;  Kobbius 

Johns.  264;  King  v.  Root,  4  Wend.   113;  v.  Treadway,  2  J.  J.  Marsh.  540. 
Cramer  v.  Riggs,  17  Wend.  209  ;  Rcspub- 

359 


413  SEDITIOUS   WORDS. 


* 


413      *  (i.)  Words  defamatory  of  the  Sovereign  himself. 

It  is  sedition  to  speak  or  publish  of  the  King  any  words  which 
would  be  libellous  and  actionable  per  se,  if  printed  and  published 
of  any  other  public  character. 

Thus,  any  words  will  be  deemed  seditious,  which  strike  at  the 
King's  private  life  and  conduct,  which  impute  to  him  any  corrupt 
or  partial  views  or  other  bad  motives  for  his  policy,  which  in- 
sinuate that  he  is  a  tyrant,  and  does  not  take  a  lively  interest  in 
the  welfare  of  his  subjects,  or  which  charge  him  with  deliberately 
favoring  or  oppressing  any  individual  or  class  of  men  in  distinc- 
tion to  the  rest  of  his  subjects.^  A  fortiori,  any  words  are  sedi- 
tious which  strike  at  his  title  to  the  Crown,  call  his  legitimacy  in 
question,  or  are  otherwise  treasonable.^  > 

But  to  assert  that  the  King  is  misled  by  his  ministers,  or  that 
he  takes  an  erroneous  view  of  some  great  question  of  policy  is 
not  seditious,  if  it  be  done  respectfully,  with  decency  and  mod- 
eratioii. 

Illusti^ations. 

The  following  words  appeared  in  the  Morning  Chronicle  for  October  2nd,  1809  :  — 
"What  a  crowd  of  blessings  rush  upon  one's  mind  that  might  be  bestowed  upon  the 
country  in  the  event  of  a  total  change  of  system  !  Of  all  monarchs,  indeed,  since  the 
Revolution,  the  successor  of  George  the  Third  will  have  the  finest  opportunity  of  be- 
coming nobly  popular."  On  the  trial  of  a  criminal  information  against  the  proprietor 
and  printer  of  the  paper  for  libel,  Lord  EUenborough  told  the  jury  that  if  they  considered 
that  the  words  meant  that  the  king's  death  would  be  a  blessing  to  the  nation,  and  that 
the  sooner  it  happened  the  better,  then  they  should  find  tlie  prisoners  guilty ; 
*  414  but  tliat  if  they  thought  the  passage  could  fairly  be  construed  as  an  *  expression 
of  regret  that  an  erroneous  view  had  been  taken  of  public  affairs,  and  of  a  wish 
for  some  change  in  the  policy  and  system  of  administration  under  His  Majesty,  they 
might  acquit  them.  The  jury  found  the  prisoners,  Not  Guilty.  R.  v.  Lambert  & 
Peny,  2  Camp.  398  ;  3  How.  St.  Tr.  340. 

To  publish  falsely  of  George  IV.  that  he  is  insane  is  a  criminal  libel,  as  it  would  be 
of  any  other  person.     R.  v.  Harvey  and  Chapman,  2  B.  &  C.  257. 

So  is  charging  the  King  with  a  breach  of  his  coronation  oath.  Oliver  St.  John's 
Case  (1615),  Noy,  105. 

To  insinuate  that  the  King  is  a  liar  and  a  deceiver,  and  to  assert  that  he  has 
treacherously  betrayed  the  interests  of  his  subjects  and  allies,  and  prostituted  the  honor 
of  his  crown  {The  North  Briton,  No.  45)  is  a  seditious  libel.  R.  v.  John  AVilkes  (1763), 
4  Burr.  2527  ;  19  How.  St.  Tr.  1075  ;  R.  v.  Kearsley,  Dig.  L.  L.  69  ;  R.  v.  John  Wil- 
liams, ib. 

1  R.  V.  Dr.  Shebbeare  (1758),  3  T.  R.  430,  note. 

2  R.  V.  Clerk  (1729),  1  Baruardistou,  304  ;  R.  v.  Kuell,  1  Barnard.  305  ;  R.  v.  Nutt, 
ih.  306. 

360 


wouds  defamatoky  of  the  government.  *  414 

As  to  certain  of  the  letters  of  Junius,  see  R.  v.  Woodfall,  5  Burr.  2661  ;  R.  v.  Al- 
mon,  ib.  2686. 

Many  dicta  in  the  old  text-books  represent  the  law  as  stricter  on  this 
point  than  is  stated  above.  According  to  Hawkins'  "  Pleas  of  the  Crown," 
i.  c.  G,^  and  4  Blackstone,  123,  c.  ix.  ii.  3,  it  is  a  high  misprision  and  con- 
tempt merely  to  speak  contemptuously  of  the  King,  to  curse  him  or  wisli 
him  ill,  to  assert  tliat  he  lacks  wisdom,  valor,  or  steadiness,  or,  in  short,  to 
say  anything  "  which  may  lessen  him  in  the  esteem  of  his  subjects,  weaken 
his  government,  or  raise  jealousies  between  him  and  his  people."  But  I 
can  find  no  decision  rejwrted  which  supports  so  wide  a  proposition  :  and  I 
venture  to  doubt  if  in  tlie  present  day  it  Avould  be  deemed  a  crime  to  call 
the  king  a  coward  or  a  fool.  Mere  words  of  vulgar  abuse  can  hardly 
amount  to  sedition.  In  fact,  the  only  distinctions  that  the  law  makes  be- 
tween words  defamatory  of  the  king,  and  of  any  other  leading  puljlic  char- 
acter appear  to  be : — 

(i.)  That  the  former  maybe  criminal  when  ow\y  sjioken ;  whereas  the 
latter  must  be  written  or  printed  and  published  ; 

(ii.)  That  in  the  case  of  the  former  it  cannot  be  pleaded  as  a  defence 
that  the  words  are  true.'' 

*  (ii.)    Words   Defamatory  of  the   King's   Ministers   and     *  415 

Goveryimenl. 

It  is  sedition  to  speak  or  publish  of  individual  members  of  the 
Government  words  which  would  be  libellous  and  actionable  'per 
se,  if  written  and  published  of  any  other  public  character. 

It  is  also  sedition  to  speak  or  publish  words  defamatory  of  the 
Government  collectively,  or  of  their  general  administration,  with 
intent  to  subvert  the  law,  to  produce  public  disorder,  or  to  foment 
or  promote  rebellion. 

"  There  is  no  sedition  in  censuring  the  servants  of  the  Crown, 
or  in  just  criticism  on  the  administration  of  the  law,  or  in  seek- 
ing redress  of  grievances,  or  in  the  fair  discussion  of  all  party 
questions."  ^ 

Where  corrupt  or  malignant  motives  are  attributed  to  an  indi- 
vidual minister,  the  words  are  clearly  seditious. 

Where,  however,  no  particular  person  is  libelled,  the  jury  must 
be  satisfied  that  the  author  or  publisher  maliciously  and  design- 

1  8th  ed.  by  Curwood,  p.  66. 

2  R.  V.  Francklin  (1731),  9  St.  Tr.  ;  17  Howell's  St.  Tr.  626. 
8  Per  Fitzgerald,  J.,  in  R,  v.  Sullivan,  11  Cox,  C.  C.  50. 

361 


*415  SEDITIOUS    WORDS. 

eclly  intended  to  subvert  our  laws  and  constitution,  and  to  excite 
dissatisfaction  and  discontent.  Tliere  must  be  a  criminal  intent. 
But  such  an  intent  will,  of  course,  be  presumed,  if  the  jury  find 
that  the  natural  and  necessary  consequence  of  the  words  em- 
ployed was  "  to  excite  a  contempt  of  Her  Majesty's  Government, 
to  bring  the  administration  of  its  laws  into  disrepute,  and  thus 
impair  their  operation,  to  create  disaffection,  or  to  disturb  the 
public  peace  and  tranquillity  of  the  realm."  ^ 

In  determining  whether  such  is  a  natural  and  neces- 
*  416  sary  *  consequence  of  the  words  employed,  the  jury  should 
consider  the  state  of  the  country  and  of  the  public  mind 
at  the  date  of  the  publication :  passages  which  in  tranquil  times 
might  be  comparatively  innocent  might  be  most  pernicious  in  a 
time  of  insurrection.2  On  the  other  hand,  the  circumstances 
which  provoked  the  attack  may  tell  in  the  prisoner's  favor.  If  a 
man  be  smarting  under  a  grievance,  or  honestly  indignant  at 
some  act  of  a  government  official,  he  cannot  be  expected  to 
speak  or  write  as  calmly  and  deliberately  as  if  he  were  discussing 
matters  in  which  he  felt  no  special  interest.^  The  jury  should, 
in  every  case,  consider  the  book  or  newspaper  article  as  a  ivhole, 
and  in  a  fair,  free,  and  liberal  spirit:  not  dwelling  too  much  upon 
isolated  passages,  or  upon  a  strong  word  here  or  there,  which 
may  be  qualified  by  the  context,  but  endeavoring  to  gather  the 
general  effect  of  the  whole  composition  on  the  minds  of  the  pub- 
lic.    Considerable  latitude  must  be  given  to  political  writers.* 

Illustrations.    ^ 

To  attribute  "the  sad  state  of  the  country  to  the  influence  of  French  gold  on  those 
who  have  the  conduct  of  affairs,"  is  f  seditious  libel,  though  no  particular  minister  is 
singled  out  ;  but  to  complain  of  "the  mismanagemeut  of  the  navy  through  the  igno- 
rance and  incapacity  of  those  who  have  the  management  of  it,"  would  (it  is  submitted) 
not  be  held  a  libel  iu  the  present  day.  R.  v.  Tutchin  (1704),  5  St.  Tr.  527  ;  14 
Howell's  St.  Tr.  1095  ;  Holt,  424  ;  2  Lord  Raym.  1061  ;  1  Salk.  50 ;  6  Mod.  268. 

An  announcement  that  a  collection  had  been  made  for  "the  relief  of  the  widows, 
orphans,  and  aged  parents  of  our  beloved  American  fellow-subjects,  who,  faithful  to  the 
character  of  Englishmen,  preferring  death  to  slavery,  were  for  that  reason  only  inhu- 
manly murdered  by  the  King's  troops  at  or  near  Lexington  and  Concord  iu  the  province 

1  R.  V.  Collins  (1839),  9  C.  &  P.  456  ;  R.  v.  Lovett,  ih.  462. 

2  Per  Fitzgerald,  J.,  11  Cox,  C.  C.  50,  59. 

8  Per  Littledale,  J.,  in  R.  v.  Collins,  9  Car.  &  P.  460. 

*  Per  Lord  Kenyon,  C.J.,  in  R.  v.  Reeves,  Peake,  Add.  Ca.  84;  26  How.  St.  Tr. 
530. 


WORDS   DEFAMATORY   OF   THE   GOVERNMENT.  *  416 

of  Massachusetts  on  the  19th  of  April  last,"  was  held  a  seditious  libel  on  his 
Majesty's  Government  and  *  their  employment  of  hi.s  troops,  tending  to  foment     *  417 
discord  and  to  promote  rebellion.     R.  v.  John  Home  (afterwards  John  Home 
Tooke)  (1777),  11  St.  Tr.  264  ;  20  Howell's  St.  Tr.  C51  ;  Cowp.  672. 

Articles  in  the  Examiner  declaring  that  an  improper  and  cruel  method  of  punish- 
ment was  practised  in  the  King's  army,  and  that  his  soldiers  were  punished  with  ex- 
cessive severity  thereby,  was  declared  by  the  jurj',  in  spite  of  the  summing  up  of  Lord 
Ellenborough,  not  to  be  a  seditious  libel  on  the  government  and  the  nulitary  service  of 
the  king  tending  to  excite  disaffection  in  the  army  and  to  deter  others  from  becoming 
recruits?  R.  v.  John  Hunt  &  John  Leigh  Hunt  (1811),  31  Howell's  St.  Tr.  408.  See 
also  R.  V.  Beere  (1698),  12  Mod.  219  ;  Holt,  422  ;  Garth.  409  ;  2  Salk.  417  ;  1  Ld. 
Raym.  414-;  R.  v.  Laurence  (1699),  12  Mod.  311  ;  R.  v.  Bedford  (1714),  cited  in  2 
Str.  789  ;  Dig.  L.  L.  19,  121  ;  R.  v.  Bliss  (1719),  Sid.  219  ;  Rol.  773  ;  R.  v.  Owen 
(1752),  18  Howell's  St.  Tr.  1203  ;  Dig.  L.  L.  67  ;  R.  v.  Francklin  (1731),  9  St.  Tr. 
255  ;  17  Howell's  St.  Tr.  626  ;  R.  v.  Gobbett  (1804),  29  Howell's  St.  Tr.  1  ;  R.  v.- 
Johnson  (1805),  29  Howell's  St.  Tr.  103  ;  7  East,  65  ;  3  Smith,  94  ;  R.  v.  Burdett 
(1820),  4  B.  &  Aid.  95,  115,  314  ;  R.  v.  Collins  (1839),  9  G.  &  P.  456  ;  R.  v.  Lovett 
(1839),  9  C.  &  P.  462. 

By  the  statutes  of  Scandalum  magnatum^^  it  is  a  crime  to  tell 
or  publish  false  news  or  tales  of  the  great  officers  of  the  realm,  &c. 

So  also  in  America  by  Act  of  Congress,  July  14,  1798,  it  is  an 
indictable  offence  to  libel  the  Government,  Congress,  or  President 
of  the  United  States. 

There  are  old  cases  -vvliich  appear  to  go  further,  and  to  decide  that  any 
publication  tending  to  beget  an  ill  opinion  of  the  Government  is  a  criminal 
libel.  "  If  persons  should  not  be  called  to  account  for  possessing  the  peo,- 
ple  with  an  ill  opinion  of  the  Government,  no  Government  can  subsist ; 
for  it  is  very  necessary  for  all  Governments  that  the  people  should  have 
a  good  opinion  of  it "  (sic).'^  And  Lord  Ellenborough,  C.J.,  ex- 
pressly following  this  decision,  *  told  the  jury  in  K.  v.  Cobbett  *  418 
(1804)  :  ^  —  "  It  is  no  new  doctrine  that  if  a  publication  be  calcu- 
lated to  alienate  the  affections  of  the  people,  by  bringing  the  Government 
into  disesteem,  whether  the  expedient  be  by  ridicule  or  obloquy,  ...  it  is 
a  crime."  If  this  is  to  be  taken  literally,  all  Opposition  newspapers  com- 
mit such  crime  every  day.  Such  a  doctrine,  if  strictly  enforced,  Avould 
destroy  all  liberty  of  the  press,  and  is,  moreover,  in  conflict  with  more  re- 
cent dicta  : — -  "  The  people  have  a  right  to  discuss  any  grievances  that  they 
may  have  to  complain  of,"  per  Littledale,  J.,  in  E.  v.  Collins.*  "  A  journali.st 
may  canvass  and  censure  the  acts  of  the  Government  and  their  public 

1  3  Edw.  L,  c.  34;  2  Rich.  IL,  c.  5;  12  Rich.  II.,  c.  11,  ante,  c.  IV.,  pp.  133- 
135. 

2  Per  Lord  Holt,  G.J.,  in  R.  v.  Tutchin  (1704),  5  St.  Tr.  532  ;  14  Howell's  St.  Tr. 
1127. 

i  29  Howell's  St.  Tr.  49.  *  9  Car.  &  P.  461. 

363 


*  418  SEDITIOUS    WORDS. 

policy — and  indeed,  it  is  his  duty.  ...  It  might  be  the  province  of  the 
press  to  call  attention  to  the  weakness  or  imbecility  of  a  Government 
when  it  was  done  for  the  public  good,"  per  Fitzgerald,  J.^  It  is  clearly 
legitimate  and  constitutional  to  endeavor,  by  means  of  arguments  addressed 
to  the  people,  to  replace  one  set  of  ministers  by  another.  And  the  precise 
object  of  such  arguments  is  to  bring  the  ministers  then  in  office  into  dis- 
esteem,  and  to  alienate  from  them  the  affections  of  the  people.  Sir  Francis 
Burdett  could  not  possibly  be  convicted  in  tlie  present  day  for  such  an 
electoral  address  as  he  issued  on  August  22nd,  1819.^ 

But  I  think  Lord  Holt's  words  must  not  be  taken  strictly  in  their  mod- 
ern signification  :  we  must  construe  them  with  reference  to  the  times  in 
which  he  spoke.  He  clearly  was  not  referring  to  a  quiet  change  of  minis- 
try which  in  no  way  shakes  the  throne,  or  loosens  the  reins  of  order  and 
government.  In  1704  the  present  system  of  party-government  Avas  not  in 
vogue  :  it  was  barely  conceived  by  William  III.,  and  was  certainly  not 
generally  understood  under  Queen  Anne.  And  even  in  Lord  Ellenborough's 
time  the  ministry  were  still  appointed  by  the  King  and  not  by  the  people. 
By  "the  Government"  both  judges  meant,  not  so  much  a  particular  set  of 
ministers,  as  the  political  system  settled  by  the  Constitution,  the  general 
order  and  discipline  of  the  realm.  "To  subvert  the  Government"  is  the 
phrase  employed  in  the  earlier  case  of  R.  v.  Beere;^  and  to  Lord  Holt's 
mind  "  subverting  the  Government "  meant  bringing  in  the  Pre- 

*  419    tender  ;  to  Lord  Ellenborough's,  *  the  introduction  of  Jacobinism 

and  Bed  Republicanism  from  France  :  not  the  substitution  of  one 
'statesman  for  another  at  the  Council  Board. 

(iii.)    Words  Defamatory  of  the  Constitution  and  of  our  Laws 

generally. 

All  malicious  endeavors  by  word,  deed  or  \viiting,  to  promote 
public  disorder  or  to  induce  riot,  rebellion  or  civil  war,  are  clearly 
seditious,  and  may  be  overt  acts  of  treason.  But  where  no  such 
conscious  endeavor  is  proved  ;  still,  if  the  natural  and  neces- 
sary consequence  of  any  word,  deed,  or  writing,  be  to  subvert 
our  laws  and  constitution  and  to  excite  or  promote  dissatisfaction 
and  discontent  amongst  the  people,  a  criminal  intent  Avill  be  pre- 
sumed ;  and  the  author  is  guilty  of  sedition.*  Thus  all  publica- 
tions, the  tendency  of  which  is  to  bring  the  constitution  of  the 
realm  into  hatred  and  contempt,  and  to  induce  the  people  to  dis- 

»  11  Cox,  C.  C.  54,  57.  ^  See  4  B.  &  Aid.  116,  7n. 

3  12  Mod.  221  ;  Holt,  422. 

4  R.  V.  Buidett  (1820),  4  B.  &  Aid.  95  ;  R.  v.  Collins  (1839),  9  C.  &  P.  456. 

364 


WOllDS   EXCITING   DISAFFECTION.  *  419 

obey  the  laws  and  to  defy  legally  constituted  authority,  are  sedi- 
tious libels,  for  which  the  author  is  criminally  liable. 

But  mere  theoretical  discussions  of  abstract  questions  of  politi- 
cal science,  comparisons  of  various  forms  and  systems  of  govern- 
ment, and  controversies  as  to  details  of  our  own  constitutional 
law  are  clearly  permissible.  And  so  is  any  hand  fide  effort  for  the 
repeal  by  constitutional  methods  of  any  law  deemed  obnoxious. 
The  prosecution  must  satisfy  the  jury  that  the  publication  is  cal- 
culated to  disturb  the  tranquillity  of  the  State  and  to  lead  ignorant 
persons  to  endeavor  to  subvert  the  government  and  the  laws  of 
the  realm.  Without  satisfactory  proof  of  such  tendency, 
there  is  no  evidence  *of  that  criminal  intention  which  is  *  420 
essential  to  constitute  the  offence. 

The  old  cases  R.  v.  Brewster  (1G63) ;  ^  E.  v.  Harrison  (1677),  and  E.  v. 
Bedford  (1714),^  so  far  as  they  run  counter  to  this  proi:»osition,  must  be  con- 
sidered as  overruled.  It  seems  that  Harrison  would  not  have  been  convicted 
but  for  the  Stat.  13  Car.  II.  c.  1,  which,  to  my  surprise,  remains  still  in 
part  unrepealed.* 

The  jury  must  find,  first,  that  the  defendant  in  fact  spoke  or 
published  the  words  complained  of ;  secondly,  that  the  words  are 
seditious  and  were  spoken  or  published  with  the  intent  alleged 
in  the  indictment.  The  latter  as  well  as  the  former  is  entirely  a 
question  for  the  jury.  The  fact  that  the  House  of  Commons  has 
resolved  that  the  same  publication  is  "■  a  malicious,  scandalous 
and  seditious  libel,  tending  to  create  jealousies  and  divisions 
amongst  the  liege  subjects  of  Her  Majesty  and  to  alienate  the  affec- 
tions of  the  people  of  this  country  from  the  Constitution,"  ought 
not  to  weigh  with  the  jury  in  the  least.  The  defendant  is  not  to 
"  be  crushed  by  the  name  of  his  prosecutor."  ^ 

"In  a  free  country  like  ours,"  says  Lord  Kenyon,  C.J.,  in  R. 
V.  Reeves,^  "  the  productions  of  a  political  author  should  not  be 
too  hardly  dealt  with."  The  jury  should  "  recollect  that  they 
are  dealing  with  a  class  of  articles,  which,  if  written  in  a  fair 
spirit  and  bond  fide,  might  be  productive  of  great  public  good, 
and  were  often  necessary  for  public  protection  ; "  and  they 
should  therefore  "deal  with  them  in  a  broad  spirit,  allowing  a 

1  Dig.  L.  L.  76.  2  3  Keb.  841  ;  Ventr.  324. 

8  Cited  in  2  Str.  789.  *  See  post,  p.  421,  2. 

6  Per  Lord  Kenyon,  C.J.,  in  R.  v.  Reeves,  Peake,  Add.  Ca.  84. 
6  Peake,  Add.  Ca.  86. 

365 


*  420  SEDITIOUS   WORDS. 

fair  and  wide  margin,  looking  ujoon  the  whole,  not  on  isolated 
words."     And  they  should  also  take  into  their  considera- 

*  421    tion  the  state  of  the  country  and  of  the  public  *  mind  at  the 

date  of  the  publication.^ 

Illustrations. 

To  assert  that  a  parliament  would  he  justified  in  making  war  against  any  king  who 
broke  the  Social  Compact,  was  naturally  deemed  seditious  in  the  days  of  Charles  II.,  as 
tending  to  a  renewal  of  the  Civil  War.  R.  v.  Brewster  (1663),  Dig.  L.  L.  76  ;  R.  v. 
Harrison  (1677),  3  Keble,  841  ;  Ventr,  324  ;  Dig.  L.  L.  66. 

To  assert  that  "  the  late  revolution  was  the  destruction  of  the  laws  of  England,"  or 
an  unjustifiable  and  unconstitutional  proceeding,  and  that  the  Act  of  Settlement  was 
"illegal  and  unwarrantable,"  and  "had  been  attended  with  fatal  and  pernicious  conse- 
quences to  the  subjects  of  this  realm,"  was  deemed  seditious  in  the  days  of  Queen  Anne 
and  of  George  II.,  as  tending  to  favor  the  cause  of  the  Pretender.  R.  v.  Dr.  Brown 
(1707),  11  Mod.  86  ;  Holt,  425  ;  R.  v.  Richard  Nutt  (1754),  Dig.  L.  L.  68.  And  see 
R,  V.  Thomas  Paine  (1792),  22  Howell's  St.  Tr.  358. 

The  Reverend  William  Winterbotliam  was  convicted  for  preaching  a  sermon  on 
November  18th,  1792,  containing  the  following  words,  which  were  deemed  seditious:  — 
"Darkness  has  long  cast  her  veil  over  the  land.  Persecution  and  tyranny  have  carried 
universal  sway.  Magisterial  ])owers  have  long  been  a  scourge  to  the  liberties  and  rights 
of  the  people."  He  was  fined  £100  and  sentenced  to  two  years'  imprisonment.  R.  v. 
Winterbotham,  22  Howell's  St.  Tr.  823,  875. 

To  habitually  republish  in  Ireland  during  a  time  of  political  excitement  and  threat- 
ened insurrection  extracts  from  American  jiapers  expressing  sympathy  with  the  Feni- 
ans, and  inciting  all  Irishmen  to  rebel,  without  one  word  of  editorial  comment  or 
disapproval,  is  an  act  of  sedition.  R.  v.  Pigott  (1868),  11  Cox,  C.  C.  47.  See  Irish 
St.  Tr.  1848,  1865,  1867,  1868. 

In  Ireland,  newspapers  containing  treasonable  and  seditious  matter  could, 
till  1875,  be  seized  under  the  provisions  of  the  Peace  Preservation  Act 
(Ireland),  1870,^  ss.  30-34;  but  these  sections  were  repealed  by  the  Act 
of  1875,8  s.  2. 

By  an  entirely  obsolete,  but  still  unrepealed,  section,  any  person  who 
shall  maliciously  and  advisedly  declare  and  publish  by  writing,  printing, 
preaching  or  other  speaking,  that  the  parliament  begun  at  Westminster  on 
]!^ovember  3rd,  1640  (the  Long  Parliament)  is  not  yet  dissolved,  or  that  it 
ought  still  to  be  in  being,  or  hath  yet  any  continuance  or  existence,  or  that 
both  Houses  of  Parliament  or  either  House  of  Parliament  have 
*  422  *  or  hath  a  legislative  power  without  the  King,  or  any  other  words 
to  the  same  effect,  incurs  the  penalties  of  a  2yrcemimire.* 

1  Per  Fitzgerald,  J.,  in  R.  v.  Sullivan,  11  Cox,  C.  C.  50,  59. 

a  33  &  34  Vict.  c.  9.  s  33  Vict.  c.  14. 

*  13  Car.  II.  stat.  I.  c.  1,  s.  3.     See  also  6  Anne,  c.  7  (al.  41),  s.  2. 

366 


CONTEMPT  OF  PARLIAMENT.  *  422 


(iv.)    Words  Defamatory  of  either  House  of  Parliament,  or  of  the 

Members  thereof. 

It  is  a  misdemeanor  to  speak  or  publish  of  individual  members 
of  either  House  of  Parliament,  in  their  capacity  as  such,  words 
which  would  be  libellous  and  actionable  per  se,  if  written  and 
published  of  any  other  public  character. 

It  is  also  a  misdemeanor  to  speak  or  publish  words  defamatory 
of  either  House  collectively  with  intent  to  obstruct  or  invalidate 
their  proceedings,  to  violate  their  rights  and  privileges,  to  dimin- 
ish their  authority  and  dignity,  or  to  bring  them  into  public  odium 
or  contempt. 

In  both  cases,  all  such  words  are  also  a  contempt  and  breach 
of  privilege,  punishable  summarily  by  the  House  itself,  with  fine 
and  imprisonment. 

Also  by  the  statutes  of  Scanclalum  magnatum}  it  is  a  crime  to 
"  devise,  tell  or  publish  any  false  news,  lyes,  or  such  other  false 
things,"  of  any  member  of  the  House  of  Lords,  or  of  any  great 
officer  of  the  realm. 

Illustration. 

Rainer  printed  a  scandalous  libel,  reflecting  both  on  the  House  of  Lords  and  on  the 
House  of  Commons,  called  "  Eobin's  Game,  or  Seven's  the  Main  ;  "  he  was  tried  in  the 
Court  of  King's  Bench,  lined  £50,  and  sentenced  to  be  imprisoned  for  two  years  and 
until  he  should  pay  such  fine.     R.  v.  Rainer,  2  Barnard.  293  ;  Dig.  L.  L.  125. 

On  three  occasions  the  House  of  Commons  has  voted  a  particular 
*  publication  a  scandalous  and  seditious  libel,  and  a  breach  of  privi-  *  423 
lege,  &c.,  and  petitioned  the  Crown  to  direct  the  Attorney-General 
to  prosecute  the  author,  printers  and  publishers  thereof.  But  strange  to 
say,  on  each  occasion  such  prosecution  has  been  unsuccessful :  the  jury  in 
each  of  the  three  cases  having  acquitted  the  prisoner.^  Hence  the  House 
of  Commons  now  invariably  deals  with  offenders  itself. 

The  House  of  Lords  can  inflict  fine  and  imprisonment  for  any 
length  of  time.'  In  former  days  the  pillory  was  sometimes  added  : 
e.g.,  in  the  case  of  Thomas  Morley  in  1623,  and  of  William  Carr 
in  1667,  who  was  sentenced  to  stand  in  the  pillory  for  libelling 
individual  peers. 

1  3  Edw.  I.,  c.  34  ;  2  Rich.  11.,  c.  5  ;  12  Rich.  II.,  c.  11,  ante,  c.  IV.,  pp.  133-5. 

2  R.  V.  Owen  (1752),  18  Howell's  St.  Tr.  1203,  1228  ;  R.  v.  Stockdale  (17Sf>),  22 
Howell's  St.  Tr.  238  ;  R.  v.  Reeves  (1796),  Peake,  Add.  Ca.  84  ;  26  Howell  s  St.  Tr. 
530. 

367 


*  428  SEDITIOUS   TTOEDS. 

The  House  of  Commons  can  inflict  fine  and  imprisonment,  and 
in  the  case  of  a  member,  expulsion.  One  unfortunate  member, 
Arthur  Hall,  suffered  all  three  penalties  in  1681  for  publishing  a 
book  disparaging  the  authority  of  the  House  of  Commons,  and 
reflecting  upon  certain  individual  members — see  Hallam.  Const. 
Hist.  Vol.  I.,  c.  V.  —  the  first  instance  of  a  libel  being  punished 
by  the  House.  But  in  the  case  of  a  commitment  by  the  House 
of  Commons,  the  imprisonment  can  only  last  till  the  close  of  the 
existing  session.  The  prisoner  must  be  liberated  on  prorogation.^ 
It  is  otherwise  with  the  House  of  Lords. 

The  Speaker's  warrant  is  a  perfect  answer  to  any  writ  of  habeas 
corjnis,  and  fully  justifies  the  Serjeant-at-arms  and  his  ofiicers  in 
arresting  the  offender,  and  protects  them  from  any  action  of  as- 
sault or  false  imprisonment.^  It  will  not  be  scanned  too  strictly 
by  the  courts  of  law,  nor  set  aside  for  any  defect  of  form.^ 
*  424  *  Thus,  the  libel  for  which  the  prisoner  was  committed 
need  not  be  set  out  in  such  warrant ;  *  though  the  hbel 
must  always  be  set  out  at  full  length  in  either  an  indictment  ^ 
or  a  statement  of  claim.^  Still  less  will  any  court  of  common 
law  inquire  into  the  propriety  of  the  commitment  or  hear  it  ar- 
gued that  the  act  complained  of  did  not  amount  to  a  contempt, 
or  that  the  privilege  of  the  House  alleged  to  have  been  broken 
does  not  exist.' 

The  House  is  the  best  judge  of  its  own  privileges,  and  of  what 
is  a  contempt  of  them.     But  if  on  the  face  of  the  warrant  it  plainly 
and  expressly  appears  that  the  House  is  exceeding  its  jurisdiction, 
the  courts  of  common  law  would  feel  bound  to  order  the  release- 
of  the  prisoner.^ 

The  House  may  commit  for  any  contempt  of  one  of  its  com- 
mittees, or  of  the  members  of  any  such  committee ;  instances  of 
such  committals  occurred  in  1832,  1858,  and  1879. 

1  Stockdale  v.  Hansard,  9  A.  &  E.  114  ;  Grissell's  Case,  Aug.  1879. 

2  Howard  v.  Gosset,  10  Q.  B.  359  ;  Burdett  v.  Colman,  14  East,  163. 
8  K.  V.  Paty,  2  Ld.  Kaym.  1108  ;  R.  v.  Hobhouse  (1819),  2  Chit.  210. 

4  Burdett «.  Abbott,  14  East,  1  ;  see  1  Moore,  P.  C.  C.  80. 

5  Bradlaugh  and  Besant  v.  The  Queen  (C.A),  3  Q.  B.  D.  607  ;  48  L.  J.  M.  C.  5  ; 
26  W.  R.  410  ;  38  L.  T.  118. 

6  Harris  v.  Warre,  4  C.  P.  D.  125  ;  4«  L.  J.  C.  P.  310  ;  27  W.  R.  461  ;  40  L. 
T.  429. 

7  Stockdale  v.  Hansard,  9  A.  &  E.  165,  195. 

8  See  ib.  169  ;  Hawkins,  3  PI.  Cr.  H.,  15,  73,  p.  219  ;  R.  v.  Evans  and  another,  8 
Dowl.  451. 

368 


COLOXLVL   LEGISLATUKES.  *424 

So  in  America  the  House  of  Representatives  has  a  general 
power  of  committing  for  contempt,  whether  the  offender  be  a 
member  or  a  stranger.^  But  as  with  the  English  House  of  Com-* 
mons,  the  imprisonment  terminates  at  the  adjournment  or  disso- 
lution of  Congress. 

But  with  subordinate  legislative  bodies  it  is  different.  No 
power  of  committing  for  contempt  is  inherent  in  them  ;  ^ 
*  although  they  have,  of  course,  power  to  preserve  order  *  425 
during  their  deliberations,  which  involves  a  power  to  re- 
move from  the  Chamber  any  person  obstructing  their  proceedhigs, 
or  otherwise  guilt}^  of  disorderly  conduct  in  the  presence  of  the 
House  itself,  and  if  the  offender  be  a  member,  to  exclude  him  for 
a  time,  or  even  to  expel  him  altogether.  Such  latter  power  is 
necessary  for  self-preservation  ;  and  is  quite  distinct  from  the 
judicial  power  of  sentencing  the  obstructive  to  a  term  of  impris- 
onment as  a  punishment  for  his  misconduct.-^ 

Thus  the  House  of  Assembly  of  Newfoundland  ;  *  the  Legisla- 
tive Council  of  Van  Diemen's  Land  ;  °  the  House  of  Keys  in  the 
Isle  of  Man  ;  ^  and  the  Legislative  Assembly  of  the  Island  of  Do- 
minica," possess  no  inherent  powers  to  commit  for  contempt.^ 

But  though  such  a  power  is  not  inherent  in  any  inferior  legis- 
lature, it  may  be  expressly  granted  by  statute  ;  thus  the  Legisla- 
tive Assembly  of  Victoria  possesses  this  privilege  by  virtue  of 
the  18  &  19  Vict.  c.  55,  s.  35  and  the  Colonial  Act,  20  Vict. 
No.  1.9 

*  Also  it  is  said  that  such  a  power  may  be  acquired  by  *  426 
prescription,  acquiescence  and  usage. ^"^    And  it  is  by  virtue 

1  Anderson  v.  Dunn,  6  Wheat.  204. 

2  Kielley  v.  Carson,  4  Moore,  P.  C.  C.  63  ;  Fenton  v.  Hampton,  11  Moore,  P.  C.  0. 
347,  overruling  dicta  of  Lord  Denraan,  C.J.,  in  Stockdale  v.  Hansard,  9  A.  &  E.  114  ; 
of  Parke,  B.,  in  Beaumont  v.  Barrett,  1  Moore,  P.  C.  C.  76. 

3  Doyle  V.  Falconer,  L.  R.  1  P.  C.  328  ;  36  L.  J.  P.  C.  37  ;  15  W.  R.  366  ;  Attor- 
ney-General of  New  South  Wales  v.  Macpherson,  L.  R.  3  P.  C.  268  ;  7  Moo.  P.  C. 
(N.  S.)  49  ;  39  L.  J.  P.  C.  59.  *  Kielley  v.  Carson,  4  Moore,  P.  C.  C.  63. 

5  Fenton  v.  Hampton,  11  Moore,  P.  C.  C.  347. 

6  Sx parte  Brown,  5  B.  &  S.  280  ;  33  L.  J.  Q.  B.  193  ;  12  W.  R.  821  ;  10  L.  T.  453. 

7  Doyle  V.  Falconer,  L.  R.  1  P.  C.  328  ;  36  L.  J.  P.  C.  33  ;  15  W.  R.  366. 

8  See  also  Attorney-General  of  New  South  Wales  v.  Macpherson,  L.  R.  3  P.  C.  268  ; 
7  Mo®.  P.  C.  (N.  S.)  49  ;  39  L.  J.  P.  C.  59. 

9  Pill  V.  Murphy,  1  Moore,  P.  C.  C.  (N.  S.)  487  ;  Speaker  of  the  Legislative 
Assembly  of  Victoria  v.  Glass,  L.  R.  3  P.  C.  560  ;  40  L.  J.  P.  C.  17  ;  24  L.  T.  317. 

10  Per  Lord  EUenborough,  C.J.,  in  Burdett  v.  Abbott,  14  East,  137,  and  Cockbum, 
C.J.,  in  Ex  parte  Brown,  5  B.  &  S.  293. 

24  369 


*426  SEDITIOUS   WORDS. 

of  such  acquiescence  and  usage  that  the  Jamaica  House  of  As- 
sembly has  the  power  of  committing  a  libeller,  if  indeed  it  has 
such  power  at  all.^ 

(v.)    Words  Defamatory  of  Courts  of  Justice  and  of  Individual 

Judges. 

(a)  Superior  Courts. 

It  is  a  misdemeanor  to  speak  or  publish  of  any  Judge  of  a  su- 
perior court  words  which  would  be  libellous  and  actionable  per  se, 
if  written  and  published  of  any  other  public  officer,  (a) 

It  is  also  a  misdemeanor  to  speak  or  publish  words  defamatory 
of  any  court  of  justice  or  of  the  administration  of  the  law  therein, 
with  intent  to  obstruct  or  invalidate  its  proceedings,  to  annoy  its 
officers,  to  diminish  its  authority  and  dignit}^  and  to  lower  it  in 
public  esteem. 

Such  words,  whether  spoken  or  written,  are  punishable  on  in- 
dictment or  information,  with  fine  or  imprisonment  or  both.  They 
are  also  in  every  such  case  a  contempt  of  Court  punishable  sum- 
marily by  the  Court  itself  with  fine  or  commitment. 

Such  words  are  also  indictable  under  the  statutes  of  Scan- 
*  427    dalum  Magnatum,^   *  as  well  as  at  common  law. 

It  is  immaterial  whether  the  words  be  uttered  in  the 
presence  of  the  Court  or  at  a  time  when  the  Court  is  not  sitting, 
and  at  a  distance  from  it  ;  ^  nor  need  they  necessarily  refer  to  the 
judges  in  their  official  capacity. 

But  "  there  is  no  sedition  in  just  criticism  on  the  administra- 
tion of  the  law.  ...  A  writer  may  freely  criticise  the  proceedings 
of  courts  of  justice  and  of  individual  judges  —  nay,  he  is  in- 
vited to  do  so,  and  to  do  so  in  a  free,  and  fair,  and  liberal 
spirit.     But  it  must  be  without  malignity,  and  not  imputing  cor- 

1  Beaumont  v.  BaiTett,  1  Moore,  P.  C.  C.  80,  as  explained  by  Parke,  B.,  in  4  Moore, 
P.  C.  C.  89. 

2  3  Edw.  I.,  c.  34  ;  2  Rich.  II.,  c.  5  ;  12  Puch.  11. ,  c.  11,  ante,  c.  IV.,  pp.  133- 
135. 

8  Crawford's  case,  13  Q.  B.  630  ;  18  L.  J.  Q.  B.  225  ;  13  Jur.  955. 

(a)  A  libellous  publication  upon  mem-  of  charges  of  corruption  on  the  court.    lb. ; 

bars  of  the  court,  or  the  grand  jury,  can-  People  v.  Wilson,  64  111.  195  ;  Eobbins  v. 

not  in  Illinois  be  treated  as  a  contempt  if  Treadway,  2  J.  J.  Marsh.  540.     Or  of  in- 

it  has  no  tendency  to  hinder  or  obstruct  capacity.     Robbins  v.  Treadway.    See  fur- 

the  court  or  jury  in  the  performance  of  ther  as  to  libels  on  judges,  In  re  Moore, 

duty.     Storey  v.  I'enple,  79  Ilh  45.    Sccus  63  N.  Car.  397. 
870 


SUPERIOR   COURTS.  *  427 

nipt  or  malicious  motives."  ^  "  It  certainly  was  lawful,  with 
decency  and  candor,  to  discuss  the  propriety  of  the  verdict  of 
a  jury,  or  the  decisions  of  a  judge,  .  .  ;  but  if  the  extracts  set  out 
in  the  information  contained  no  reasoning  or  discussion,  but  only 
declamation  and  invective,  and  were  written,  not  with  a  view  to 
elucidate  the  truth  but  to  injure  the  characters  of  individuals, 
and  to  bring  into  hatred  and  contempt  the  administration  of 
justice  in  the  country,"  then  the  defendants  had  transgressed  the 
law,  and  ought  to  be  convicted.^ 

Illustrations. 

To  say  that  a  judge  had  been  bribed,  or  that  in  any  particular  case  he  had  endeavored 
to  serve  his  own  interests  or  those  of  his  friends  or  of  his  party,  or  wished  to  curry 
favor  at  Court,  or  was  influenced  by  fear  of  the  Government  or  of  any  great  man,  or  by 
any  other  side-motive  other  than  a  simple  desire  to  arrive  at  the  truth  and  to  mete  out 
justice  impartially,  is  a  seditious  libel.  See  R.  v.  Lord  George  Gordon,  22  Howell's  St. 
Tr.  177. 

To  call  the  Lord  Chief  Justice  "a  traitor  and  a  perjured  judge,"  and  to 
*  allege  that  a  recent  judgment  delivered  by  him  was  treason,  is  a  misdemeanor.     *  428 
E.  V.  Jeffe  (1632),  15  Vin.  Abr.  89  ;  Hutton,  J.  v.  Harrison,  Hutton,  131. 

To  say  that  the  Lord  Chief  Justice  disgraces  his  high  station  and  prevents  justice 
being  done,  is  a  misdemeanor.  K.  v.  Hart  and  White  (1808),  30  How.  St.  Tr.  1168, 
1345;  10  East,  94;  R.  v.  Wrenmim  (1619),  Popham,  135;  Butt  v.  Couant,  1  Brod.  & 
Biug.  548;  4  Moore,  195;  Gow,  84. 

Hurry  sued  Watson  for  a  malicious  prosecution,  and  recovered  damages  £3000  :  the 
corporation  of  which  Watson  was  a  member  tliereupon  resolved  "  that  Mr.  Watson  had 
been  actuated  by  motives  of  public  justice  in  prosecuting  Hurry,"  and  voted  him  £2300 
towards  payment  of  his  damages.  The  court  of  King's  Bench  granted  an  information 
against  the  members  of  the  corporation.     R.  v.  Watson  &  others,  2  T.  R.  199. 

[That  the  vote  of  money  was  an  improper  employment  of  the  corporate  funds  is  very 
probable  ;  but  so  far  as  the  mere  words  of  the  resolution  are  concerned,  I  see  no  mis- 
demeanor. They  appear  to  me  to  be  but  a  temperately  worded  statement  that  the  cor- 
poration differed  from  the  jury  in  their  opinion  of  Mr.  Watson's  conduct.] 

Besides  such  indictable  offences,  many  other  acts  and  Avords  are 
contempts  of  Court.  Thus  it  is  contempt  of  Court  to  insult  the 
Judge,  jury  or  witnesses,  to  obstruct  any  officer  of  the  Court  in 
the  execution  of  his  duty,  to  express  contempt  for  the  process  of 
the  Court,  to  calumniate  the  parties  concerned  in  any  cause,  to 
prejudice  the  minds  of  the  public  against  the  suitors  or  others 
before  the  cause  is  finally  heard,  or  in  any  other  way  to  taint  the 
source  of  justice  or  to  divert  or  interrupt  its  ordinary  course.^ 

1  Per  Fitzgerald,  J.,  in  R.  v.  Sullivan,  11  Cox,  C.  C.  50. 

2  Per  Grose,  J.,  in  R.  v.  White  and  others,  1  Camp.  359. 

8  See  the  judgment  of  Blackburn,  J.,  in  Skipworth's  Case,  L.  R.  9  Q.  B.  232,  241. 

871 


*  428  SEDITIOUS  WORDS. 

In  all  such  cases  a  Superior  Court  may  interfere  summarily  to 
protect  itself  and  fine  the  offender  or  commit  him  to  prison  pro- 
prio  motu ;  and  this,  although  no  indictable  offence  has  been 
committed.^ 

Illustrations. 

Even  the  prisoner  in  the  dock,  who  is  always  allowed  great  latitude,  if  he 

*  429     he  defending  himself,  may  be  fined  for  contempt  of  court,  if  he  persist  *  in 

using  blasphemous  language  and  in  applying  offensive  epithets  to  the  pre- 
siding judge  in  the  course  of  his  speech  to  the  jury.     R.  v.  Davison,  4  B.  &  Aid.  329. 

So,  too,  a  barrister  may  be  guilty  of  contempt  of  Court,  if  he  unnecessarily  insults 
one  of  the  jury  in  the  course  of  his  address  to  them.  In  re  Pater,  5  B.  &  S.  299  ;  33 
L.  J.  M.  C.  142  ;  12  W.  R.  823  ;  10  L.  T.  376. 

The  most  innocent  words,  if  uttered  in  a  peculiar  manner  and  tone,  may  be  a  con- 
tempt of  Coiu't.  For  an  insult  may  be  conveyed  either  by  language  or  by  manner. 
Carus  Wilson's  Case,  7  Q.  B.  1015. 

It  is  a  contempt  of  court  and  a  libel,  punishable  by  attachment,  to  publish  a  pam- 
phlet asserting,  that  judges  have  no  power  to  issue  an  attachment  for  libels  upon  them- 
selves, and  denying  that  reflections  upon  individual  judges  are  contempts  of  Court  at 
all.     R.  V.  Almon,  Wilmot's  Notes  of  Opinions  and  Judgments,  p.  253. 

Any  attempt  to  bribe  a  judge,  or  to  influence  his  probable  decision  on  a  matter  be- 
fore him  by  any  private  communication,  is  a  contempt  of  Court.  Martin's  Case,  2 
Russ.  &  Mylne,  674  ;  Macgill's  Case,  2  Fow.  Ex.  Pr.  404. 

But  not  every  silly  or  impudent  letter  addressed  to  a  judge  about  a  matter  which 
he  lias  decided  will  be  ti-eated  as  a  contempt.  R.  v.  Faulkner,  2  Mont.  &  Ayr.  321, 
322. 

It  is  a  contempt  for  a  party  to  a  suit  to  publish  before  the  case  has  come  on  for 
hearing  a  copy  of  his  brief,  or  even  an  abstract  of  his  petition  or  statement  of  claim,  or 
of  the  affidavits  filed  on  either  side,  or  any  other  ex  parte  statement  tending  to  prepos- 
sess the  minds  of  the  public  in  his  favor  or  to  calumniate  his  adversary.  Captain 
Perry's  Case,  cited  2  Atk.  469  ;  2  Dick.  794;  Mrs.  Farley's  Case,  2  Vesey,  senr.,  520 ; 
Coleman  v.  West  Hartlepool  Harbor  &  Railway  Co.,  8  W.  R.  734  ;  2  L.  T.  766  ;  In  re 
The  Cheltenham  &  Swansea  Waggon  Co.,L.  R.  8  Ecj.  580  ;  38  L.  J.  Ch.  330  ;  17  W.  R. 
463  ;  20  L.  T.  169  ;  Tichbome  v.  Mostyn,  L.  R.  7  E(p  55,  n. ;  15  W.  R.  1072  ;  17  L.  T.  5. 

An  article  in  a  newspaper,  commenting  on  a  case  still  before  the  Court,  is  a  con- 
tempt, though  written  temperately  and  respectfully,  and  in  all  other  respects  such  an 
article  as  might  properly  and  legitimately  be  written  and  published  after  the  trial  is 
ended.  R.  v.  Clement,  4  B.  &  Aid.  218  ;  Littler  v.  Thompson,  2  Beav.  129  ;  Roach  v. 
Garvan,  Read  &  Huggonson,  2  Atk.  469  ;  2  Dick.  794  ;  Tichborue  v.  Mostyn,  per 
Wood,  V.C,  L.  R.  7  Eq.  57,  n.  ;  15  W.  R.  1074  ;  17  L.  T.  7  ;  Tichborne  v.  Tichborne, 
39  L.  J.  Ch.  398  ;  18  W.  R.  621;  22  L.  T.  55  ;  Vernon  v.  Vernon,  40  L.  J.  Ch.  118  ; 
19  W.  R.  404;  23  L.  T.  697  ;  Buenos  Ayres  Gas  Co.  v.  Wilde,  29  W.  R.  43  ;  42  L.  T. 

657. 
*  430  *  An  advertisement  in  a  newspaper  offering  £100  reward  for  legal  proof  of 

a  certain  marriage,  such  evidence  being  required  in  a  pending  suit,  was  con- 
sidered by  Parker,  L.C.,  a  contempt  of  Court,  as  tending  to  procure  false  evidence. 
(But  I  doubt  if  such  a  construction  would  be  put  on  such  an  advertisement  in  the 
present  day.)     Pool  v.  Sacheverel,  1  P.  Wms.  675. 

1  Per  Lord  Holt,  C.J.,  in  R.  v.  Rogers,  7  Mod.  29. 

372 


CO^'TEMPT    OF   COURT.  *  430 

Threats  and  insults  addressed  either  to  a  party  or  a  witness  pending  a  suit,  -whether 
by  word  or  letter,  are  a  contempt  of  Court.  Smith  v.  Lakeman,  26  L.  J.  Ch.  305  ;  2 
Jur.  N.  S.  1202  ;  28  L.  T.  (Old  S.)  98  ;  Shaw  v.  Shaw,  31  L.  J.  Pr.  &  Matr.  35  ;  6  L.  T. 
477  ;  2  Sw.  &  Tr.  515  ;  Re  Mulock,  33  L.  J.  Pr.  k  Matr.  205  ;  10  Jur.  N.  S.  1188  ;  13 
W.  R.  278. 

A  fortiori,  if  addi'essed  to  the  judge  or  a  master.  Lechmere  Charlton's  Case,  2  Myl. 
k  Cr.  316. 

So  it  is  a  contempt  for  the  solicitor  to  a  defendant  to  publish  in  a  newspaper  anony- 
mous letters  full  of  arguments  in  the  defendant's  favor,  and  denying  the  facts  on  which 
the  plaintitr  would  rely  at  the  trial.  Daw  v.  Eley,  L.  R.  7  Eq.  49  ;  38  L.  J.  Ch.  113  ; 
17  W.  R.  245. 

The  publisher  of  a  newspaper  was  conimitted  for  printing  an  article  which  attacked 
the  persons  who  had  made  affidavits  in  a  suit  in  Chancery  not  yet  concluded,  imputing 
to  them  ignorance  of  facts  and  interested  motives.  Felkin  v.  Herbert,  33  L.  J.  Ch. 
294  ;  12  W.  R.  241,  332  ;  9  L.  T.  635  ;  10  Jur.  N.  S.  62.  See  also  Littler  v.  Thomp- 
son, 2  Beav.  129.     In  re  William  Watson,  Shaw's  Cases  (Scotch),  No.  6. 

Still  more  is  it  a  contempt  of  court  for  one  committed  for  trial  for  perjury  or  for  any 
of  his  partisans  to  address  public  meetings,  alleging  that  there  is  a  conspii-acy  against 
him,  and  that  he  will  not  have  a  fair  trial.  Castro,  Onslow's  &.  Whalley's  Case,  L.  R. 
9  Q.  B.  219  ;  12  Cox,  C.  C.  358  ;  Skipworth's  Case,  L.  R.  9  Q.  B.  230  ;  12  Cox,  C.  C.  371. 

And  even  when  the  case  is  over,  the  solicitor  for  the  defeated  party  will  be  guilty  of 
a  contempt,  if  he  publishes  a  pamphlet  describing  the  judgment  pronounced  as  "an 
elaborate  production,  wholly  beside  the  merits  of  the  case,"  with  other  flippant  and 
contumacious  observations.     Ex  parte  Turner,  3  Jlont.  D.  &  De  G.  523,  551,  558. 

The  committee  of  a  lunatic  published  a  pamphlet  reflecting  upon  persons  who  were 
managing  the  lunatic's  estate  under  the  orders  of  the  Court  of  Chancery.  Lord  Erskine, 
C,  committed  him  to  prison  for  contempt,  and  the  printer  as  well.  Ex  'po-Tte  Jones, 
13  Ves.  237. 

Where  the  Court  of  Bankruptcy  has  appointed  a  receiver  to  take  and 
*  hold  possession  of  a  bankrupt's  jjroperty,  it  is  a  contempt  of  Court  for  the  *  431 
holder  of  even  a  valid  bill  of  sale  to  forcibly  oust  the  receiver.  Ex  parte 
Cochrane,  In  re  Mead,  L.  R.  20  Eq.  282  ;  44  L.  J.  Bkcy.  87  ;  23  W.  R.  726  ;  32  L.  T. 
508.  And  see  In  re  Fells,  Ex  parte  Andrews,  4  Ch.  D.  509  ;  46  L.  J.  Bkcy.  23  ;  25 
W.  R.  382  ;  36  L.  T.  38.  And  Ex  parte  Drake,  In  re  Ware,*  5  Ch.  D.  866  ;  46  L.  J. 
Ch.  105  ;  25  W.  R.  641  ;  36  L.  T.  677. 

To  beat  and  kick  the  officer  of  the  Court  who  serves  a  subpoena  and  to  compel  him 
to  eat  the  wax  and  parchment  thereof  is  a  contempt,  punishable  by  committal.  Wil- 
liams V.  Johns  (1773),  cited  in  the  note  to  Elliot  v.  Halmarack,  1  Mer.  303. 

So  is  merely  using  abusive  and  violent  language  towards  any  person  serving  the 
process  of  any  Court.  Price  v.  Hutchinson,  L.  R.  9  Eq.  534  ;  18  W.  R.  204  ;  R.  v. 
Jones  (1719),  1  Stra.  185. 

If  a  high  sheriff  proceeds  to  address  the  grand  jury  in  open  Court  at  the  close  of  the 
judge's  charge  and  persists  in  so  doing  though  ordered  by  the  judge  to  sit  down  and 
be  quiet,  he  may  be  fined  £500  for  contempt.  In  ra  the  High  Sheriff  of  Surrey,  2  F. 
&  F.  234,  237. 

So  for  a  civilian  high  sheriff  to  meet  a  judge  of  assize  in  ordinary  civilian  dress  has 
been  deemed  a  contempt  of  Court. 

Wilful  disobedience  to  any  lawful  order  of  a  Court  or  a  judge 
is  a  contempt,  especially  if  on  being  served  with  a  copy  of  the 

373 


*  431  SEDITIOUS    WOEDS. 

order  the  party  expresses  in  defiant  and  contemptuous  language 
his  intention  to  disregard  such  order.^  And  if  a  plaintiff  be 
guilty  of  such  contempt,  he  is  liable,  in  addition  to  fine  or  im- 
prisonment, to  have  all  proceedings  stayed,  or  even  the  whole 
action  dismissed  and  money  paid  into  Court  returned  to  the  de- 
fendant.2     j^  true  copy  of  the  order  of  the  Court  must  as  a 

*  432    rule  be  served.^     If,  however,  at  the  *  time  of  disobedience 

the  offender  has  from  any  reasonable  source  knowledge 
that  the  order  has  been  made,  it  is  immaterial  that  the  order  has 
not  yet  been  duly  served.  Notice  by  telegram  may  be  sufficient.* 
But  where  the  defendant  bond  fide  desires,  but  is  in  fact  unable, 
to  obey  the  order  of  the  Court,  such  disobedience  is  not  wilful, 
and  is  not  a  contempt.^  Where,  however,  a  person  ordered  to 
perform  a  particular  act,  purposely  puts  it  out  of  his  power  to 
obey  with  a  view  of  evading  the  order  of  the  Court,  such  conduct 
is  an  aggravation  of  his  original  offence  in  disobeying,  and  is  in 
itself  a  contempt  of  Court. 

Illustrations. 

A  trustee  was  ordered  to  pay  £94  14s.  into  court :  on  the  same  day  he  was  adjudi- 
cated a  bankrupt  :  the  Court  refused  to  attach  him  for  disobedience  to  the  order. 
Cobham  v.  Dalton,  L.  R.  10  Ch.  App.  655  ;  44  L.  J.  Ch.  702  ;  23  "W.  R.  865.  See 
also  Earl  of  Lewes  v.  Barnett,  6  Ch.  D.  252 ;  47  L.  J.  Ch.  144  ;  26  "W.  R.  101  ;  Pash- 
ler  V.  Vincent,  8  Ch.  D.  825  ;  27  W.  R.  2. 

The  defendant  had  illegally  removed  a  quantity  of  human  hones  and  earth  from  the 
parish  burial  ground  of  Chew  Magna  to  his  own  field.  The  Court  of  Arches  issued  a 
monition  to  him  to  replace  them.  In  the  meantime,  the  defendant  on  the  marriage 
of  his  daughter  to  a  Mr.  Bromfield  conveyed  this  field  and  other  land  to  the  trustees 
of  the  marriage  settlement,  and  it  was  argued  that  the  defendant  was  unable  to  obey 
the  order  of  the  Court  as  he  no  longer  either  owned  or  occupied  the  field,  and  it  was 
further  pretended  that  Mr.  Bromfield  refused  to  allow  his  father-in-law  to  enter 

*  433     on  the  field  and  remove  the  bones.     The  Court  of  Arches  pronounced  the  *  de- 

fendant guilty  of  contumacy  and  contempt.     The  bones  were  replaced  within 
six  days.     Adlam  v.  Colthurst,  L.  R.  2  Adm.  &  Eccl.  30  ;  36  L.  J.  Ec.  Ca.  14. 

1  Anon.  (1711)  1  Salk.  94  ;  R.  v.  Clement,  4  B.  &  Aid.  218  ;  Mr.  Long  Wellesley's 
Case,  2  Russ.  &  Mylne,  639  ;  Hudson  v.  Tooth,  2  P.  D.  125  ;  35  L.  T.  820  ;  Martin  v. 
Mackonochie,  3  Q.  B.  D.  730  ;  Combe  v.  Edwards,  3  P.  D.  103. 

2  Republic  of  Liberia  v.  Roye,  1  App.  Cas.  139  ;  45  L.  J.  Ch.  297  ;  24  W.  R.  967  ; 
34  L.  T.  145. 

8  Li  re  Holt,  11  Ch.  D.  168  ;  27  W.  R.  485  ;  40  L.  T.  207. 

*  In  re  Bryant,  4  Ch.  D.  98  ;  25  W.  R.  230  ;  35  L.  T.  489  ;  Ex  jMrte  Langley,  Ex 
parte  Smith,  Li  re  Bishop,  13  Ch.  D.  110  ;  49  L.  J.  Bkcy.  1  ;  28  W.  R.  174  ;  41  L.  T. 
388.  See  further  on  this  point  Jud.  Act,  Order  XLIL,  rr.  2,  4,  5,  20  ;  Order  XLIV.  ; 
Order  XXXI.,  rr.  20,  22,  and  Hutchinson  v.  Hartmont,  W.  N.  1877,  p.  29  (M.  R.) ; 
Pho.sphate  Sewr.ge  Co.  v.  Hartmont,  25  W.  R.  743. 

^  Clare  v.  Blakesley  and  others,  8  DowL  835. 

374 


ATTACHMENT.  *  433 

An  advocate  at  Aberdeen  snatched  a  petition  from  the  Clerk  of  the  Court ;  the 
Sheriff-substitute  remonstrated  and  warned  him  he  was  committing  a  contempt  o 
Court ;  but  the  advocate  put  the  petition  in  his  pocket  and  immediately  left  the  Court. 
The  Sheritf-substitute  thereupon  issued  a  warrant  ordering  him  to  deliver  up  the  docu- 
ment on  pain  of  imprisonment.  As  soon  as  the  sherift-s  officers  entered  the  advocate's 
office,  and  demanded  the  petition,  the  advocate  threw  it  into  the  tire.  The  officer 
thereupon  immediately  seized  and  imprisoned  him.  In  an  action  brought  by  the  advo- 
cate for  false  im2)risonment,  held  by  the  House  of  Lords,  that  the  arrest  was  j)erfectly 
lawful  under  the  circumstances.     Watt  v.  Ligertwood  &  another,  L.  R.  2  Sc.  App.  361. 

If  the  contempt  is  committed  in  open  Court  and  in  presence  of 
the  Judge,  he  may  commit  the  offender  instanter,  and  without 
any  prior  notice.^  And  I  presume  this  power  is  not  taken  away 
by  Jud.  Act,  Order  XLIV.,  r.  2.  A  written  warrant  is  not  essen- 
tial to  such  a  committal,  though  it  is  usual.^ 

But  when  the  offender  is  not 'present,  and  the  contempt  is 
committed  by  words  spoken  or  published  out  of  Court,  it  is 
usual  to  grant  first  a  rule  7iisi  calling  on  the  offender  to  show 
cause  why  an  attachment  should  not  be  granted  against  him  ; 
although  the  Court  still  may,  and  in  flagrant  cases  will,  on  clear 
and  satisfactory  evidence,  grant  an  attachment  in  the  first 
instance,  and  issue  its  warrant,  so  that  the  offender  shall  answer 
for  his  contempt  in  custody.^  The  rule  7iisi  is  generally  granted 
on  affidavit  of  the  fact,  though  the  Court  may  proceed 
on  its  own  knowledge,  without  any  suggestion.*  *  If  the  *  434 
offender  fails  to  appear  and  show  cause,  a  warrant  may 
issue  for  his  apprehension  ;  ^  or  he  may' be  fined  in  his  absence.^ 

When  the  offender  was  brought  before  the  Court,  it  was 
formerly  the  custom  to  adjourn  the  matter  for  four  days,  in  order 
that  interrogatories  might  be  exhibited  against  him,  which  he 
was  compelled  to  answer  on  oath.  But  now  it  is  usual  to  dis- 
pense with  all  interrogatories ;  the  offender  at  once  shows  Avhat 
cause  he  can,  and  endeavors  to  purge  his  contempt  with  the  aid 
of  ordinary  affidavits.  If  the  Court  is  not  satisfied,  it  may  com- 
mit him  to  prison  for  a  time  certain,  or  may  impose  a  fine,  or  may 
do  both;  and  in  every  case  the  Court  may  further  order  the 

1  Gascoyne,  C.J.,  thus  committed  the  Prince  of  Wales  in  1-106.  See  L.  li.  2  Sc. 
App.  367,  n. 

2  Per  Wightman,  J.,  in  Cams  Wilson's  Case,  7  Q.  B.  1017. 
8  Anon.  (1711),  1  Salk.  94  ;  E.  v.  Jones  (1719),  1  Stra.  185. 

*  In  re  the  High  Sherilf  of  Surrey,  2  F.  &  F.  236  ;  Skipworth's  and  Castro's  Cases, 
L.  R.  9  Q.  B.  230  ;  12  Cox,  C.  C.  358. 

6  Lechmere  Charlton's  Case,  2  Myl.  &  Cr.  316. 
6  R.  V.  Clement.  4  B.  &  Aid.  218. 

375 


*  434  SEDITIOUS    "WORDS. 

offender  to  pay  the  costs  of  the  proceedings.^  But  in  this  case, 
as  in  every  other,  the  costs  are  in  the  discretion  of  the  Court, 
and  will  not  be  granted  where  the  proceedings  are  clearly  vexa- 
tious, and  the  party  instituting  them  is  himself  to  blame.^  The 
costs  should  be  asked  for  when  the  rule  is  argued;^  and  in  cases 
where  tlie  contempt  is  slight  or  unintentional,  and  the  offender 
submits  himself  to  the  Court,  and  has  done  all  in  his  power  to 
clear  his  contempt,  the  Court  often  makes  no  other  order,  except 
that  defendant  pay  the  costs  of  the  motion.^ 

The  commitment  must  be  for  a  time  certain.^  But  in  all  other 
respects  the  warrant  may  be  in  general  terms  :  no  special  grounds 
need  be  stated  ;  nor  need  the  facts  which  are  the  cause  of 
*  435  the  arrest  be  *  specified  :  it  is  sufficient  to  state  that  the 
offender  is  committed  for  contempt  of  Court.^  Two  lines 
are  sufficient,''  and  will  justify  the  officer  of  the  Court  in  arresting 
the  offender,  and  protect  him  from  any  action  of  false  imprison- 
ment. It  is  presumed  that  the  Court  was  acting  regularly  and 
rightl}^  unless,  indeed,  the  contrary  appears  expressly  on  the 
face  of  the  writ.^  And  the  decision  of  the  Judge  committing 
cannot  be  reviewed  by  any  other  Court.^  If  a  fine  is  inflicted  it 
is  usual  to  add  a  sentence  of  imprisonment  till  the  fine  be  paid, 
in  addition  to  any  other  term  of  imprisonment  that  may  have 
been  inflicted.^o  Where  the  period  for  which  the  offender  is  to 
be  detained  is  expressed  in  the  margin  of  the  writ,  or  may  be 
gathered  from  it  by  necessary  inference,  the  gaokr  should  dis- 
charge tlie  prisoner  at  the  end  of  that  period. ^^  But  if  the 
warrant  does  not  state  the  period  for  which  he  is  to  be  kept  in 
custody,  nor  refer  to  the  nature  of  the  contempt  committed,  the 
gaoler  should  not  release  him  without  an  order  of  the  Court.^^ 

1  Martin's  Case,  2  Euss.  &  Myl.  674. 

2  Vernon  v.  Vernon,  40  L.  J.  Ch.  118  ;  19  W.  R.  404  ;  23  L.  T.  697. 

3  Abud  V.  Riches,  2  Ch.  D.  528  ;  45  L.  J.  Ch.  649  ;  24  W.  R.  637  ;  34  L.  T.  713. 

4  See  L.  R.  7  Eq.  58,  n. 

6  R.  V.  James,  5  B.  &  Aid.  894  ;  Green  v.  Elgie  and  another,  5  Q.  B.  99. 

6  Howard  v.  Cosset,  10  Q.  B.  411  ;  Ex  parte  Fernandez,  6  H.  &  N.  717  ;  10  C.  B. 
(N.  S.)  3.  ^  R.  V.  Paty,  2  Lord  Raym.  1108. 

8  R.  V.  Evans  and  another,  8  Dowl.  451. 

»  Burdett  V.  Abbott,  14  East,  1  ;  Stockdale  v.  Hansard,  per  Littledale,  J.,  9  A.  &  E. 
169  ;  Cams  Wilson's  Case,  per  Lord  Denman,  C.J.,  7  Q.  B.  1008. 
w  L.  R.  9  Q.  B.  228,  229,  240. 

11  Moone  v.  Rose,  L.  R.  4  Q.  B.  486  ;  38  L.  J.  Q.  B.  236. 

12  Greaves  v.  Keene,  4  Ex.  D.  73  ;  27  W.  R.  416  ;  40  L.  T.  21G  ;  McCombe  v.  Gray, 
4L.  R.  (Ir.)  432. 

376 


CO.MMITTAL.  *  435 

When  the  period  assigned  comes  to  an  end,  the  offender  may  not 
be  detained  in  custody  merely  for  the  costs  of  the  application  to 
the  Court  to  commit. i     A  fortiori  where  condemnation  in 
costs  is  the  only  punishment  inflicted,  the  *  Court  has  no    *  436 
power  subsequently  to  commit   to  prison  for  default  in 
payment.^ 

In  Scotland  the  Court  of  Session  has  sometimes  hy  interdict  prevented 
the  intended  publication  of  any  statements  having  a  tendency  to  interfere 
with  the  administration  of  justice.  Thus,  where  one  of  two  prisoners 
charged  with  murder  confessed  before  his  trial  and  by  his  confession  seri- 
ously implicated  the  other,  the  Court  of  Session  prohibited  the  Edinburgh 
Eveninrj  Courant  from  publishing  the  confession,  lest  it  should  prejudice 
the  fair  trial  of  the  other  prisoner.^  But  in  Fleming  v.  Xewton,^  Lord 
Cottenham  expresses  a  strong  opinion  that  such  interdicts  are  an  excess  of 
the  powers  of  the  Court  of  Session;  as  by  such  intervention  "jurisdiction 
over  libels  is  taken  from  the  jury,  and  the  right  of  unrestricted  publication 
is  destroyed." 

In  England  such  a  prohibition  would  be  clearly  an  illegal  restriction  of 
the  liberty  of  the  press.  But  the  Court  of  Chancery  has  sometimes  asserted 
that  an  exception  to  this  rule  exists  in  its  own  fxvor :  and  it  has  granted 
injunctions  to  restrain,  not  indeed  all  publications  Avhicli  it  deems  contempts, 
but  one  special  class,  viz.,  premature  publications  of  its  own  proceedings, 
whether  in  court  or  before  an  examiner.^  And  there  is  one  instance  in 
which  a  court  of  gaol  delivery  exercised  a  similar  power,^  on  the  trial  of 
Thistlewood  and  others  for  treason  in  1820. 

It  is  said  that  such  injunction  will  not  generally  be  granted  unless  ap- 
plied for  promptly,  nor  if  the  party  complaining  has  himself  invited,  or 
commenced,  pubhc  discussion  of  the  matter  in  a  newspaper.''  But  having 
regard  to  the  recent  decision  in  the  Prudential  Assurance  Co.  v. 
Knott,*  it  may  well  be  doubted  whether  *  any  such  exception  to  the  *  437 
general  rule  exists  either  in  Scotland  or  in  England.  Xo  doubt  it  is 
a  contempt  for  any  one  to  prematurely  publish  garbled  ex  parte  accounts  of 

1  Jackson  v.  Mawby,  1  Ch.  D.  86  ;  45  L.  J.  Ch.  53  ;  24  W.  R.  92 ;  Hudson  v. 
Tooth,  2  P.  D.  125  ;  35  L.  T.  820. 

2  Mickelthwaite  v.  Fletcher,  27  W.  R.  793. 

8  Bell's  Notes,  165.     See  also  Emond's  Case,  Dec.  7th,  1829,  Shaw,  229. 
4  1  H.  L.  C.  376. 

6  Ex  parte  Jones,  13  Vesey,  237  ;  Brook  v.  Evans,  29  L.  J.  Ch.  616  ;  6  Jur.  N.  S. 
1025  ;  8  W.  R.  688  ;  Coleman  v.  West  Hartlepool  Rail.  Co.,  8  W.  R.  734  ;  2  L.  T. 
766.  ^  "R.v.  Clement,  4  B.  &  Aid.  218. 

7  Daw  V.  Eley,  L.  R.  7  Eq.  49  ;  38  L.  J.  Ch.  113  ;  Buenos  Ayres  Gas  Co.  v.  Wilde, 
29  W.  R.  43  ;  42  L.  T.  657. 

8  L.  R.  10  Ch.  142  ;  44  L.  J.  Ch.  192  ;  23  W.  R.  249  ;  31  L.  T.  866. 

OPT  IT 

Ol  i 


*  437  ■  SEDITIOUS   WOEDS.  i 

interlocutory  proceedings  :  but  surely  subsequent  punishment  by  fine  and 
imprisonment  is  a  sufficient  deterrent.  There  seems  no  need  of  such  an 
unusual  remedy  in  this  particular  case,  especially  as  the  Courts  of  Equity 
have  no  jury,  whose  minds  might  be  influenced  thereby. 

The  Avords  "Superior  Court"  include  the  House  of  Lords,  the 
Judicial  Committee  of  the  Privy  Council,  the  Court  of  Appeal, 
the  High  Court  of  Justice,  and  any  Divisional  Court  thereof,  and 
any  Judge  of  any  division  sitting  in  Court  alone  ^  and  the  London 
Court  of  Bankruptcy.^  Also  any  commissioner  of  oyer  and  ter- 
miner, assize,  gaol  delivery,  and  Nisi  Prius.^  And  the  Superior 
Courts  of  Law  and  Equity  in  Dublin,  and  the  Court  of  Session 
in  Scotland. 

But  whether  a  judge  sitting  at  chambers  is  "  a  superior  court,"  and  has 
such  power  to  commit  for  contempt,  may  well  be  doubted.  Wilmot,  C.J., 
was  clearly  of  opinion  that  a  judge  at  chambers  had  such  a  power,  as  ap- 
pears by  the  very  learned  judgment  which  he  intended  to  deliver  in  E.  v. 
Almon,*  but  it  was  not  delivered  in  fact,  the  case  having  dropped  on  the 
resignation  of  the  then  Attorney-General,  Sir  Fletcher  Norton.  But  there 
is  no  instance  of  a  judge  at  chambers  himself  inflicting  fine  or  imprison- 
ment. He  invariably  reports  any  insult  off"ered  to  him  at  chambers  to  the 
full  court,  and  leaves  it  to  the  Court  to  punish  the  offender.  And  in  E.  v. 
Faulkner,^  Lord  Abinger,  C.B.,  states  most  distinctly  that  a  judge  at  cham- 
bers has  no  power  to  commit  for  contempt.  Section  39  of  the  Jud.  Act, 
1873,  seems  in  no  way  to  enlarge  the  powers  of  a  judge  at  cham- 
*  438  hers  ;  and  *  its  concluding  sentence  certainly  implies  that  a  judge 
at  chambers  is  not  "a  court,"  and  in  so  far  confirms  Lord  Abinger's 
opinion.  In  the  analogous  case  of  the  Court  of  Eeview,  it  has  been  de- 
cided that  a  single  judge  has  no  power  to  commit  for  contempt,  except 
when  sitting  as  the  Court.  ^  Hence,  in  spite  of  the  dictum  of  Folkard  & 
Starkie,'^  the  better  opinion  appears  to  be  that  a  judge  at  chambers  cannot 
safely  commit  summarily  for  a  contempt  of  himself;  although,  of  course, 
he  constantly  issues  at  chambers  writs  of  attachment  a/ler  notice  to  the 
party  in  default  under  Jud.  Act,  Order  XLIV. 

1  Jud.  Act,  1873,  s.  39. 

2  32  &  33  Vict.  c.  71,  ss.  10,  77  ;  G.  E.  178,  179  ;  c.  62,  s.  9  ;  c.  83,  ss.  4,  16. 

8  Ex  parte  Fernandez,  6  H.  &  N.  717  ;  10  C.  B.  (N.  S.)  3  ;  30  L.  J.  C.  P.  321  ;  7  Jur. 
^^.  S.  529,  571  ;  9  W.  R.  832  ;  4  L.  T.  296,  324  ;  In  re  McAleece,  Ir.  R.  7  C.  L.  146. 

4  Wilmot's  Opin.  &  Judgments,  253.  6  2  Mont.  &  Ayr.  338. 

6  Ex  parte  Van  Sandau,  1  Phillips,  445  ;  Van  Sandau  v.  Turner,  6  Q.  B.  773  ;  com- 
iwre  also,  In  re  Ramsay,  L.  R.  3  P.  C.  427  ;  7  Moo.  P.  C.  C.  N.  S.  263  ;  Rainey  v.  Jus- 
tices of  Sierra  Leone,  8  Moo.  P.  C.  C.  47.  '^  4  ed.,  631. 
378 


COLONIAL   COURTS.  *  438 

And  a  fortiori  no  official  or  special  referee,^  and  no  arbitrator,^  can  com- 
mit for  contempt. 

The  Colonial  courts  of  record  are  also  superior  courts,  and 
possess  the  power  of  instantly  committing  for  contempt  in  all  the 
above  cases :  and  no  appeal  lies  from  such  a  commitment  to  the 
Privy  Council.^  But  if  it  appear  on  the  face  of  the  writ  that 
the  Court  had  exceeded  its  jurisdiction  ;  ^  or  if  the  offender  had 
no  opportunity  given  him  of  defending  or  explaining  his  con- 
duct ;  ^  or  if  the  punishment  awarded  for  the  contempt  was 
not  appropriate  to  the  offence ;  ^  the  order  of  commitment 
will  *  be  set  aside,  and  the  fine  ordered  to  be  remitted,  by  *  439 
the  judicial  committee  of  the  Privy  Council  on  appeal. 
But  if  it  sufficiently  appears  that  the  prisoner  was  committed  for 
contempt,  and  that  the  Court  had  powder  to  commit  for  such  con- 
tempt, the  offender  cannot  be  heard  to  sa}^  that  such  contempt 
was  not  in  fact  committed.  "  Every  Court  in  such  a  case  has  to 
form  its  own  judgment." ''  When  a  competent  court,  acting 
clearly  within  its  jurisdiction,  states  certain  matters  of  fact^  affi- 
davits are  not  admissible  to  contradict  such  findings.  So  if  the 
colonial  court  administers  a  different  system  of  law  from  ours, 
affidavits  cannot  be  received  in  England  to  show  that  the  colo- 
nial court  was  acting  contrary  to  its  own  law.  The  English 
Courts  must  "  give  full  credit  to  that  Court  for  knowing  and  ad- 
ministering their  own  law."  ^ 

1  JuJ.  Act,  Order  XXXVI,  r.  33.  23^4  Will.  IV.  c.  42,  s.  40. 

3  Crawford's  Case,  13  Q.  B.  613  ;  18  L.  J.  Q.  B.  225  ;  13  Jur.  955  ;  In  re  McDermott, 
L.  R.  1  P.  C.  260  ;  2  P.  C.  341  ;  38  L.  J.  P.  C.  1  ;  20  L.  T.  47  ;  Hughes  v.  Porral  and 
others,  4  Moore,  P.  C.  C.  41. 

*  In  re  Ramsay,  L.  R.  3  P.  C.  427  ;  7  Moore,  P.  C.  C.  JST.  S.  263  ;  Rainey  v.  The  Jus- 
tices of  Sierra  Leone,  8  Moore,  P.  C.  C.  47. 

6  In  re  Pollard,  L.  R.  2  P.  C.  106  ;  5  Moore,  P.  C.  C.  N.  S.  111. 

6  Re  Wallace,  L.  R.  1  P.  C.  283  ;  36  L.  J.  P.  C.  9  ;  15  W.  R.  533  ;  14  L.  T.  286  ;  Re 
Downie  &  Arrindell,  3  Moore,  P.  C.  C.  414. 

1  Per  Ld.  Denman,  C.J.,  in  Carus  Wilson's  Case,  7  Q.  B.  1015. 

8  Ptr  Ld.  Denman,  C.J.,  in  Carus  Wilson's  Case,  7  Q.  B.  1014.  See  also  The  Bank 
of  Australasia  v.  Harding,  9  C.  B.  661  ;  19  L.  J.  C.  P.  345  ;  Bank  of  Australasia  v. 
Nias,  16  Q.  B.  717  ;  20  L.  J.  Q.  B.  284  ;  De  Cosse  Brissac  v.  Ratlibone,  6  H.  &  N. 
301  ;  30  L.  J.  Ex.  238  ;  Munroe  v.  Pilkington,  31  L.  J.  Q.  B.  89  ;  8  Jur.  N.  S.  557  ; 
6  L.  T.  21  ;  Simpson  v.  Fogo,  32  L.  J.  Ch.  249  ;  1  H.  &  M.  195  ;  1  J.  &  H.  18 ;  9  Jur. 
N.  S.  403  ;  1  N.  R.  422  ;  11  W.  R,  418  ;  8  L.  T.  61  ;  Godard  v.  Gray,  L.  R.  6  Q.  B. 
139  ;  40  L.  J.  Q.  B.  62 ;  19  W.  R.  348  ;  24  L.  T.  89. 

379 


*440  SEDITIOUS   WORDS. 

*  440  *  (5)  Inferior  Courts. 

The  Judge  of  an  inferior  court  is  in  no  better  position  than  any 
other  public  character,  so  far  as  words  written  and  published  are 
concerned.  It  is  a  misdemeanor  to  write  and  publish  concerning 
him  in  the  execution  of  his  office  any  words  which  would  be 
libellous  and  actionable  per  se  if  written  and  published  of  any 
other  public  officer. 

It  is  not  indictable  to  sjjeak  disrespectful  and  abusive  words  of 
the  judge  of  an  inferior  court  behind  his  back,  or  even  to  his  face, 
provided  he  be  out  of  covirt. 

But  it  is  indictable  to  S2JeaJc  aloud  in  open  court  when  the  judge 
is  present  in  the  discharge  of  his  duty,  words  reflecting  upon  him 
in  his  official  capacity. 

Illustrations. 

It  is  indictable  — 

to  give  the  lie  to  the  steward  of  a  manor  holding  a  court  leet,  Earl  of  Lincoln  v. 

Fisher,  Cro.  Eliz.  581  ;  Ow.  113  ;  IMoore,  470  ; 
to  put  on  your  hat  in  the  presence  of  the  lord  of  a  court  leet  and  refuse  to  take  it 
off,  saying,  "I  care  not  what  you  can  do,"  Bathurst -y.  Coxe,  1  Keb.  451,  465; 
Sir  T.  Raym.  68  ; 
to  rise  up  in  court  and  say  to  the  justices  in  session,  "Though  I  cannot  hare  justice 
here,  I  will  have  it  elsewhere,"  R.  v.  Mayo,  1  Keb.  508  ;  1  Sid.  144  (although 
Twisden,  J.,  mercifully  endeavored  to  construe  the  words  to  mean  merely,  "  I 
propose  to  appeal  from  your  decision  ") ; 
to  say  to  a  justice  of  the  peace  in  the  execution  of  his  office,  "  You  are  a  rogue  and  a 

liar,"  R.  V.  Revel,  1  Str.  420 ; 
to  call  the  mayor  of  Yarmouth  in  his  court  in  the  hearing  of  the  suitors,  a  puppy 

and  a  fool.  Ex  parte  The  Mayor  of  Yarmouth,  1  Cox,  C.  C.  122. 
But  it  is  not  indictable  — 

to  call  a  justice  of  the  peace,   "a  logger-headed,  a  slouch-headed,  bursen -bellied 
houn.l,"  R.  V.  Farr,  1  Keb.  629  ; 
*  4-(l  *  ^or  to  say  that  a  justice  is  a  fool,  or  an  ass,  or  a  coxcomb,  or  a  block- 

head, or  a  bufflehead.     Per  Holt,  C.J.,  in  R.  v.  Wrightson,  2  Salk.  698  ;  11. 
Mod.  166  ;  2  Roll.  Rep.  78  ;  4  Inst.  181  ; 

Nor  to  say  of  a  burgess  of  Hull,  that  "AVheneverhe  comes  to  put  on  his  gown. 
Satan  enters  into  him,"  R.  v.  Baker,  1  Mod.  35  ; 

Nor  to  say  of  a  justice  of  the  peace  in  his  absence  that  he  is  a  sco)indrel  and  a  liar. 
Per  Lord  Ellenborough,  R.  v.  Weltje,  2  Camp.  142  ; 

Nor  to  accuse  a  justice  of  partiality  or  corruption,  unless  the  words  were  uttered  at 
a  time  when  the  magistrate  was  in  the  actual  execution  of  his  office,  Hx  parte  The 
Duke  of  Marlborough,  5  Q.  B.  955  ;  1  Dav.  &  Mer.  720 ; 

Nor  to  tell  a  boroucfh  magistrate,  out  of  court  but  to  his  face,  that  he  is  a  liar,  and 
unfit  to  be  a  magistrate,  and'that  he  will  hear  the  same  every  time  he  came  into  town  ; 
unless  indeed  the  words  can  be  construed  as  tending  to  provoke  a  breach  of  the  peace. 

380 


INFEKIOE,    COURTS.  *  441 

Ex  -parte  Chapman,  4  A.  &  E.  773.  See  also  Anon.  (1650),  Style,  251  ;  Simmons  v. 
Sweete,  Cro.  Eliz.  78  ;  Bagg's  Case,  11  Rep.  93,  95  ;  1  Roll.  Rep.  79,  173,  224  ;  R.  v. 
Burford,  1  Ventris,  16  ;  R.  v.  Leafe,  Andrews,  226  ;  R.  v.  Penny,  1  Ld.  Raymond, 
153;  R.  V.  Langley,  2  Ld.  Raymond,  1029;  2  Salk.  697;  6  Mod.  125;  Holt,  654; 
R.  V.  Rogers,  2  Ld.  Raymond,  777;  7  Mod.  28  ;  R.  v.  Nun,  10  Mod.  186  ;  R.  v.  Grau- 
field,  i2  Mod.  98  ;  R.  v.  Pocock,  2  Str.  1157  ;  R.  v.  Burn,  7  A.  &  E.  190.  These  cases 
oveiTule  R.  v.  Darby,  3  Mod.  139  ;  Comb,  lo'o  ;  Carth.  14. 

Thus  the  same  act  which  would  be  indictable  if  committed 
with  respect  to  a  superior  court  ma}^  not  be  indictable  if  only  an 
inferior  court  is  concerned.  And  the  power  of  an  inferior  court 
to  deal  itself  with  such  contempts  is  again  still  further  restricted. 

For  as  we  have  seen  the  superior  courts  could  commit  to  prison 
in  many  cases  where  the  offence  is  not  indictable.     An 
inferior  court  on  the  other  hand  cannot  commit  *  in  every    *  442 
case  which  is  indictable,  and  certainly  in  none  which  is  not.^ 

An  inferior  court  of  record  can  only  commit  for  contempts 
committed  in  open  court,  in  facie  cwrice?  The  judge  or  coroner 
must  at  the  moment  be  actually  discharging  his  duty ;  and  the 
words  employed  or  act  done  must  either  be  pointedly  and  per- 
sonally disrespectful  to  the  judge  or  coroner  himself;  or  else 
amount  to  a  serious  obstruction  of  the  course  of  justice. 

Illustrations. 

If  a  coroner  for  any  reason  (and  the  sufficiency  of  such  reason  is  a  matter  entirely 
for  the  coroner  in  tlie  exercise  of  his  discretion)  order  a  particular  person  to  quit  the 
room  where  he  is  about  to  hold  an  inquest,  and  such  person  wholly  refuse  to  go,  and 
defiantly  continues  in  the  room  to  the  hindrance  of  the  inquest,  the  coroner  may  law- 
fully order  him  to  be  expelled.     Garnett  v.  Ferrand,  6  B.  &  C.  611. 

The  solicitor  for  a  plaintiff  in  a  county  court  wrote  a  letter  to  the  local  newspaper, 
accusing  the  judge  of  the  county  court  of  "arbitrary  and  tyrannical  abuse  of  power," 
and  calling  one  statement  he  had  made  "a  monstrosity"  and  "an  untruth."  Udd 
that  the  judge  had  no  power  to  proceed  against  the  solicitor  for  contempt  of  court ; 
although  the  matter  was  still  pending.  R.  v.  Lefroy,  Ex,  parte  Jolliffe,  L.  R.  8  Q.  B. 
134  ;  42  L.  J.  Q.  B.  121 ;  21  W.  R.  332  ;  28  L.  T.  132. 

Before  actually  committing,  the  judge  or  coroner  should  always 
give  the  offender  an  opportunity  of  explaining  his  conduct  and 
showing  cause  why  he  should  not  be  committed. 

If  the  judge  or  coroner  does  commit,  he  must  issue  a  warrant 
in  writing,  and  duly  signed ;   he  may  not  commit  by  word  of 

1  R.  V.  Revel,  1  Str.  420. 

2  R.  V.  Lefroy,  L.  R.  8  Q.  B.  134  ;  42  L.  J.  Q.  B.  121  ;  21  W.  R.  332  ;  28  L.  T. 
132. 

3S1 


*  442  SEDITIOUS   WOllDS. 

mouth,  as  a  jiulge  of  a  superior  court  may  sometimes  do.^  Such 
warrant  should  state  clearly  the  cause  for  which  the  pri-s- 
*443  oner  was  committed  and  all  facts  necessary  *  to  give 
jurisdiction  to  commit.  Affidavits  are  inadmissible  to 
contradict  any  statement  of  fact  contained  in  the  warrant ;  ^ 
though  they  are  admissible  to  show  want  of  jurisdiction.^  But 
where  it  sufficiently  appears  that  the  prisoner  was  committed  for 
contempt,  and  the  court  had  power  on  the  facts  as  stated  by  them 
to  commit  for  such  contempt,  their  decision  cannot  be  reviewed 
by  any  court.*  They  alone  can  judge  of  the  insult  offered  to  them. 
Such  a  warrant  will  justify  any  officer  of  the  inferior  court  in 
arresting  the  offender,  and  protect  him  from  any  action  of  assault 
or  false  imprisonment.^ 

Illustrations. 

Charles  Carus  Wilson,  an  English  attorney,  went  to  reside  in  Jersey,  and  there 
brought  an  action  against  Peter  Le  Sieur  in  the  Royal  Court  of  Jersey,  which  was  com- 
posed of  a  Bailiff  and  two  Jurats,  or  Lieutenant-bailiifs.  On  September  23rd,  1844,  the 
court  was  about  to  deliver  an  interlocutory  judgment  in  the  cause  against  Wilson,  when 
he  interposed  and  in  an  unbecoming  manner  protested  against  the  competency  of  the 
court,  his  own  counsel  being  jiresent  and  silent.  Wilson  had  previously  been  repeat- 
edly warned  that  his  conduct  was  disrespectful.  The  Court  thereupon,  after  giving 
Wilson  full  opportunity  to  explain  or  apologize  for  his  conduct,  sentenced  him  to  pay 
a  fine  of  £10  and  apologize  to  the  Court,  and  in  default  to  be  imprisoned  till  obedience. 
This  sentence  was  duly  recorded  in  the  Judgment  Book,  and  read  aloud  to  Wilson  and 
his  counsel  then  and  there  ;  but  Wilson  wholly  refused  either  to  pay  or  to  apologize,  and 
was  accordingly  at  once  arrested  by  the  Viscount  of  the  island,  whose  duty  it  was  to  carry 
into  effect  the  sentences  of  the  Royal  Court,  and  lodged  in  Her  Majesty's  gaol.  A  writ 
of  habeas  corpus  was  obtained  on  the  ground  that  there  was  no  written  warrant  for  his 
arrest  or  detainer.  The  return  to  the  writ  set  out  all  the  facts  and  also  stated  that  by 
the  law  and  practice  of  the  Island  of  Jersey  no  written  warrant  was  necessary  or  usual, 
but  the  sentence  duly  recorded  was  of  itself  a  sufficient  authority  justifying  and  com- 
pelling the  Viscount  to  arrest,  and  the  gaoler  to  detain,  the  offender.  Held  by  Lord 
Denman^  C.J.,  Patteson,  Williams  and  Wightman,  JJ.,  that  affidavits  on  behalf  of 

Wilson  to  show  that  such  was  not  the  law  or  practice  of  Jersey,  and  that  in 
*  444    other  respects  the  Royal  Court  had  acted  inconsistently  with  *  its  own  law, 

could  not  be  received  :  that  no  written  warrant  was  necessary ;  that  the  con- 
tempt was  a  matter  which  the  Royal  Court  had  to  decide  for  itself ;  that  its  decision, 
■  being  the  decision  of  a  competent  court,  could  not  be  reviewed  by  the  Queen's  Bench  ; 
and  Wilson  was  accordingly,  on  April  22nd,  1845,  remanded  to  Her  Majesty's  Prison  in 
Jersey.     Carus  Wilson's  Case,  7  Q.  B.  984. 

1  Mayhew  v.  Locke,  7  Taunt.  63. 

i!  In  re  John  Rea  (2),  4  L.  R.  Jr.  345  ;  14  Cox,  C.  C.  256. 
3  R.  a;.  Bolton,  1  Q.  B.  73. 

*  Carus  Wilson's  case,  7  Q.  B.   984,  1014  ;  Garnett  v.  Ferrand,  6  B.  &  Cr.  625  ; 
R.  V.  Bolton,  1  Q.  B.  73. 

6  Levy  V.  Moylan,  19  L.  J.  C.  P.  308  ;  1  L.  M.  &  P.  307. 

382 


SURETIES    FOR   GOOD   BEHAVIOR. 


444 


Inferior  Courts  not  of  record  have  no  power  to  fine  or  com- 
mit for  contempt.  But  they  have  another  remedy  which  is  now- 
peculiar  to  inferior  courts,  although  it  was  formerly  employed 
also  by  the  superior  courts  in  cases  not  calling  for  severer  punish- 
ment. The  offender  may  be  required  to  find  sureties  for  his  good 
behavior :  — 

(i.)  If  he  use  any  disrespectful  or  unmannerly  expressions  in 

the  face  of  the  court.^ 
(ii.)  If,  out  of  court,  he  uses  words  disparaging  the  judge  or 

magistrate  in  relation  to  his  office, 
(iii.)  If,  out  of  court,  he  obstruct  or  insult  an  officer  of  the 

court  in  the  execution  of  his  duty.^ 
(iv.)  And  generally,  if  he  use  any  words  which  directly  tend 
to  a  breach  of  the  peace. 

But  not  for  contemptuous  and  uncivil  words  spoken  of  the 
judge  in  his  private  capacity. 

Such  binding  over  should  be  done  as  soon  as  possible  after 
the  contempt  is  committed  ;  and  in  the  case  of  petty  sessions,  it 
should  be  done,  not  by  the  justice  specially  attacked,  but  one  of 
his  brethren.^  And  in  default  of  sureties  being  provided,  the 
justices  may  commit  either  to  the  common  gaol  or  to  the  House 
of  Correction;*  but  it  should  appear  clearly  upon  the  face  of 
their  warrant  that  the  committal  is  for  want  of  sureties,  and  not 
merely  for  contempt.^  And  the  conwiittal  should  be  for  a 
time  *  certain,  not  "  until  he  shall  find  such  sureties,"  else  *  445 
a  poor  and  friendless  man  might  be  imprisoned  for  life.^ 


Illustrations. 

Langley  said  to  the  Mayor  of  Salisbury  whilst  in  the  execution  of  his  office,  "  Mr. 
Mayor,  I  do  not  care  for  you ;  you  are  a  rogue  and  a  rascal. "  Held  that  the  words  were 
not  indictable  ;  but  that  the  Mayor  might  have  bound  him  over  then  and  there  to  be 
of  good  behavior,  and  ought  to  have  done  so  instantly.  R.  v.  Langley,  2  Ld.  Ray- 
mond, 1029  ;  6  Mod.  125  ;  2  Salk.  697  ;  Holt,  654. 

Rogers  spoke  unmannerly  words  to  Sir  Robert  Jeffryes,  an  Alderman  of  the  City  of 
London,  while  he  was  holding  a  wardmote  in  a  church.  Holt,  C.J.,  said,  "No  infor- 
mation or  indictment  will  lie  for  these  words.  For  the  common  law  has  provided  a 
proper  method  for  punishment  of  scandalous  words,  viz.,  binding  to  the  good  behavior  ; 
such  words  being  a  breach  of  the  peace."     R.  v.  Rogers,  2  Ld.  Raym.  777  ;  7  Mod.  28. 


1  1  Lev.  107  ;  1  Keh.  558. 
8  R.  V.  Lee,  12  Mod.  514. 
6  Dean's  case,  Cro.  Eliz.  689. 


2  Hawk.  P.  C.  c.  61,  ss.  2,  3. 
<  6  Geo.  I.,  c.  19,  s.  2. 
6  Prickett  v.  Gratrex,  8  Q.  B.  1020. 
383  • 


*  445  SEDITIOUS    WOEDS. 

As  to  some  inferior  courts  special  statutes  have  been  passed. 
Thus,  as  to  County  Courts,  by  9  &  10  Vict.  c.  95,  s.  113,i  it  is 
enacted,  that,  "  if  any  person  shall  wilfully  insult  the  judge  or 
any  juror,  or  any  bailiff,  clerk  or  officer  of  the  said  court  for  the 
time  being,  during  his  sitting  or  attendance  in  court,  or  in  going 
to  or  returning  from  the  court,  or  shall  wilfully  interrupt  the  pro- 
ceedings of  the  court,  or  otherwise  misbehave  in  court,  it  shall 
be  lawful  for  any  bailiff  or  officer  of  the  court,  with  or  without 
the  assistance  of  any  other  person,  by  the  order  of  the  judge,  to 
take  such  offender  into  custody,  and  detain  him  until  the  rising 
of  the  court ;  and  the  judge  shall  ije  empowered,  if  he  shall  think 
fit,  by  a  warrant  under  his  hand,  and  sealed  with  the  seal  of  the 
court,  to  commit  any  such  offender  to  any  prison  to  which  he  has 
power  to  commit  offenders  under  this  Act,^  for  any  time 

*  446    not  exceeding  seven  days,  or  to  impose  upon  any  such  *  of- 

fender a  fine  not  exceeding  £5  for  every  such  offence  ;  and, 
in  default  of  payment  thereof,  to  commit  the  offender  to  any  such 
prison  as  aforesaid  for  any  time  not  exceeding  seven  days,  unless 
the  said  fine  be  sooner  paid."^ 

And  it  has  been  held  that  a  County  Court  judge  has  no  power 
to  commit  in  any  case  not  within  this  section.*  Except,  of  course, 
for  breach  of  injunction  and  in  other  cases  coming  within  rules 
30  &  31  of  County  Court  Rules,  1875,  Order  XIX.^ 

By  the  County  Voters  Registration  Act,  1865,^  s,  16,  it  is  de- 
clared to  be  lawful  for  any  Revising  Barrister,  whether  revising 
the  Lists  of  a  Count3%  City,  or  Borough,  to  order  any  person  to 
be  removed  from  his  Court  who  shall  interrupt  the  business  of 
the  Court,  or  refuse  to  obey  his  lawful  orders  in  respect  of  the 
same  ;  and  it  shall  be  the  duty  of  the  Chief  Constable,  Commis- 
sioner, or  Chief  Officer  of  Police  of  the  County,  City,  Borough, 
or  Place  in  which  the  Court  is  held,  to  take  care  that  an  officer 
of  police  do  attend  that  Court,  during  its  sitting,  for  the  purpose 
of  keeping  order  therein,  and  to  carry  into  effect  any  order  of  the 
Revising  Barrister  as  aforesaid. 

By  the  Petty  Sessions  (Ireland)  Act,  1851,^  s.  9,  it  is  enacted 

1  County  Courts  Act,  1846.  2  See  12  &  13  Vict.  c.  101,  s.  2. 

3  See  Levy  v.  Moylan,  19  L.  J.  C.  P.  308  ;  1  L.  M.  &  P.  307. 
*  R.  V.  Lefroy,  Ex  parte  JoUiffe,  L.  R.  8  Q.  B.  134  ;  42  L.  J.  Q.  B.  121  ;  21  W.  R. 
332  ;  28  L.  T.  132. 

5  Martin  v.  Bannister,  4  Q.  B.  D.  212,  491  ;  48  L.  J.  Ex.  300  ;  27  W.  R.  431. 

6  28  Vict.  c.  36.  M4  &  15  Vict.  c.  93. 

•384 


STATUTORY   POWERS.  *  446 

that  if  any  person  shall  wilfully  insult  any  Justice  or  Justices 
sitting  in  any  ....  Court  or  place,  or  shall  commit  any 
contempt  of  any  such  Court,  it  shall  be  lawful  for  such  Justice  or 
Justices  by  any  verbal  order,  either  to  direct  such  person  to  be 
removed  from  such  Court  or  place,  or  to  be  taken  into  cus- 
tody, and  at  any  time  before  the  *  rising  of  such  Court,  by  *  447 
warrant,  to  commit  such  person  to  jail  for  any  period  not 
exceeding  seven  days,  or  to  fine  such  person  in  any  sum  not  ex- 
ceeding 40s. 

Illustrations. 

In  1874  Thomas  Willis  claimed  to  vote  as  a  freeholder ;  but  the  revising  barrister 
on  the  meagre  evidence  before  him  held  that  the  proiierty  in  respect  of  which  he 
claimed  was  copyhold,  and  disallowed  the  vote.  His  cousin  William  Willis  who  was 
present  in  court  as  agent  for  the  opposite  political  party  knew  perfectly  well  that  it  was 
really  freehold,  but  held  his  tongue.  In  1875  Thomas  Willis  accordingly  claimed  as  a 
copyholder.  Then  William  came  forward  and  ijroduced  the  family  title-deeds  and 
proved  clearly  that  the  land  was  freehold.  The  revising  hamster  was  compelled  again 
to  disallow  Thomas's  vote  ;  but  ordered  William  to  be  turned  out  of  the  room  for  not 
having  produced  this  evidence  in  1874.  Held  that  such  expulsion  was  wrongful,  as 
William's  conduct  in  1874,  though  possibly  deserving  of  moral  reprobation,  was  cer- 
tainly no  "interruption"  of  the  proceedings  of  the  court  then  being  held  in  1875. 
Willis  V.  Maclachlan,  1  Ex.  D.  376  ;  45  L.  J.  Ex.  689  ;  35  L.  T.  218. 

To  insist,  in  spite  of  repeated  remonstrance,  upon  interrupting  and  insulting  a  court 
of  petty  sessions,  by  shouting  at  the  bench  in  the  most  violent  and  unseemly  manner, 
so  that  not  even  one  of  the  justices  was  able  to  speak  a  word,  is  a  contempt  for  which 
the  court  may  commit  to  prison  even  a  solicitor  practising  before  them.  Li  re  John 
Rea  (1878),  2  L.  R.  Ir.  429  ;  14  Cox,  C.  C.  139. 

A  material  witness  against  a  prisoner  committed  for  trial  on  a  charge  of  felony  re- 
fused to  be  bound  over  to  appear  at  the  Quarter  Sessions  to  give  evidence  against  him, 
saying  that  she  would  not  go  to  Maidstone,  and  nobody  should  make  her.  After  fully 
explaining  the  matter  and  expending  nearly  an  hour  in  the  attempt  to  persuade  her  to 
go,  the  committing  magistrate  issued  a  warrant  by  virtue  of  which  she  was  taken  to 
Maidstone,  and  gave  her  evidence,  and  the  prisoner  was  convicted  ;  without  her  evi- 
dence he  could  not  have  been  convicted.  Held  that  the  an-est  was  lawful,  by  neces- 
sary implication  from  1  &  2  Ph.  &  M.  c.  13.  Bennett  and  wife  v.  Watson  and 
another,  3  M.  &  S.  1. 

The  term  "  Inferior  Court"  includes  the  Mayor's  Court,  Lon- 
don, the  Sheriffs  Court,  the  City  of  Lond(m  Court  of  Record,  the 
Secondary's  Court,  the  Tolzey  Court  of  Bristol,  the  Salford  Court 
of  Record,  the  Court  of  Passage,  Liverpool,  all  Sheriff's  Courts, 
all  County  Courts,  all  Courts  of  Quarter  and  Petty  Ses- 
sions, all  Coroner's,  all  *  Revising  Barrister's,  and,  in  short,  *  448 
all  temporal  Courts  not  enumerated  as  Superior  Courts, 

ante,  p.  437. 

25  385 


*  448  SEDITIOUS   ^VOKDS. 

The  ecclesiastical  Courts  have  no  power  to  commit  for  contempt  at  all. 
All  that  such  Court  can  do  is  to  signify  such  contempt  to  the  Lord  Chan- 
cellor, Vho  thereupon,  under  2  &  3  Will.  IV.  c.  93,  issues  a  writ  de  con- 
tumace  capiendo  for  taking  the  offender  into  custody.^  But  such  writ  will 
not  issue  if  the  alleged  offender  be  a  peei-,  a  lord  of  Parliament,  or  a  mem- 
ber of  the  House  of  Commons  (s.  2).  Note  that  both  Mr.  Long  Wellesley 
and  Mr.  Lechmere  Charlton,"'^  were  members  of  Parliament,  and  yet  both 
were  committed  to  the  Fleet  for  contempt  of  the  Court  of  Chancery.* 

1  Adlam  v.  Colthurst,  L.  R.  2  Adm.  &  Ecc.  30  ;  36  L.  J.  Ec.  Ca.  14  ;  Ux  parte 
Dale,  43  L.  T.  534. 

2  Ante,  pp.  430,  431. 

8  2  liuss.  &  Mylne,  639  ;  2  Mylne  &  Cr.  816.     And  see  the  remarks  of  Cockburn, 
C.J.,  in  Onslow's  and  WliaUey's  cases,  L.  R.  9  Q.  B.  228,  9  ;  12  Cox,  C.  C.  369. 
386 


*PArvT    11.  *449 

♦ 

PllACTICE,  PROCEDURE,  AND  EVIDENCE. 


CHAPTER    XVII. 

PEACTICE   AND   EVIDENCE   IN   CIVIL   CASES. 

An  action  of  libel  or  slander  should  not  be  lightly  undertaken ;  it  is  a 
dangerous  experiment ;  many  a  plaintiff,  even  though  nominally  successful, 
lias  bitterly  regretted  that  he  ever  issued  his  writ.  Every  one  who  pro- 
poses to  bring  an  action  of  defamation  should  remember  that  he  is  about 
to  stake  his  reputation  on  the  event  of  a  lawsuit,  and  to  invite  the  public 
to  be  spectators  of  the  issue.  No  step,  therefore,  should  be  taken  in  hot 
haste.  There  are  many  matters  which  require  careful  consideration  before 
an  action  be  commenced,  (a) 

Considerations  before  Writ. 

First,  is  it  clear  that  the  plaintiff  is  the  person  defamed  1  Libels  are 
often  couched  in  guarded  language,  so  that  none  but  the  initiated  can  tell 
to  whom  they  refer.  Thus,  if  the  libel  be  on  "  a  certain  vicar,"  no  indi- 
vidual vicar  should  sue,  unless  by  other  passages  in  the  libel  he  is  unmis- 
takably identified  ;  otherwise  he  Avill  be  "  putting  the  cap  on  his  own 
head."  It  is  not  enough  that  one  or  two  of  the  plaintiff's  dearest  friends 
feel  convinced  that  he  is  the  person  aimed  at ;  he  should  not  sue  unless 
his  relations  and  acquaintances  generally  have  arrived  at  the  same  con- 
clusion. 

Next,  is  the  charge,  or  any  part  of  it,  true  1     If  so,  the  plaintiff, 
by  bringing  an  action  takes  the  surest  method  of  advertising  *  his    *  450 
own  disgrace.     When  once  the  action  is  brought  and  a  justification 
pleaded,  no  honorable  compromise  can  be  effected  ;  the    matter   must  be 
fought   out   to   the   bitter  end  ;  and   every  detail  will  become  matter  of 

(rt)  The  action  floes  not  survive  in  Mas-  346.  An  action  for  libel  survives  against 
sachusetts  though  attended  with  special  the  defendant's  estate  in  Iowa.  Carson  v. 
damage.     Cummings  v.    Bird,    115  Mass.     McFadtlen,  10  Iowa.  iH. 

387 


*  450  PRACTICE   AND   EVIDENCE. 

"town  talk."  It  would  be  better,  therefore,  for  such  a  plaintiff  to  affect 
an  indifference  which  he  does  not  feel,  and  treat  the  libel  as  "  beneath 
contempt." 

And  even  if  the  charge  itself  be  false,  still  if  the  plaintiff  has  been  at  all 
to  blame  in  the  matter,  if  his  conduct,  tijough  not  morally  reprehensible, 
has  yet  been  indiscreet  or  unbecoming,  it  will  be  better  for  him  not  to  sue. 
He  wiU  have  to  be  cross-examined  in  open  court,  and  every  admission 
wrung  from  him  will  be  published  in  all  the  county  papers  ;  the  blackest 
motives  will  be  imputed  to  him,  and  the  worst  possible  construction  be 
put  upon  his  conduct.  And  although  the  verdict  be  ultimately  in  the 
plaintiff's  favor,  many  of  his  acquaintances  will  remember  with  pleasure  to 
their  dying  day  what  a  sorry  figure  he  cut  in  the  box. 

Tlie  plaintiff  should  also  consider  whetlier  he  has  not  brought  the  libel 
or  slander  on  himself,  whether  his  own  conduct  was  not  such  as  naturally 
to  lead  people  to  make  unkind  remarks.-'  Sometimes  it  is  a  defence  to  an 
action  that  the  plaintiff  challenged  or  invited  the  defendant's  attack  ;^  and 
in  every  case  the  defendant  may  show  in  mitigation  of  damages  the  provo- 
cation given  by  the  plaintiff".^  A  man  who  has  commenced  a  newspaper 
controversy  comes  with  a  very  bad  grace  to  the  law  courts  for  assistance 
against  too  powerful  an  adversary.  If  both  parties  are  to  blame,  the  result 
of  the  trial  is  generally  :  —  Damages,  one  farthing ;  each  party  to  pay  his 
own  costs. 

And  wliolly  apart  from  the  above  considerations,  is  it  Avortli  while  to 
bring  an  action  ?  Is  the  matter  sufficiently  serious  1  A  man  does  not 
advance  either  his  dignity  or  his  reputation  by  showing  himself  too  sensi- 
tive to  calumny.  His  friends  will  tliink  that  he  is  eager  for  litigation, 
because  he  knows  that  his  character  cannot  stand  the  least  wear  and  tear. 
This  remark  applies  chiefly  to  actions  of  slander.  It  is  not  wise  to  inquire 
too  curiously  what  others  say  of  us  behind  our  backs.     The  slander 

*  451     is  only  heard  by  few  ;  it  will  soon  be  forgotten  :  if  you  *  bring  an 

action,  it  will  be  disseminated  throughout  the  country,  and 
recorded  in  a  permanent  shape.  If  then  you  are  in  doubt  whether  to 
bring  an  action  of  slander  or  not,  my  advice  would  be  in  the  negative, 
unless  the  charge  made  be  really  serious.  A  libel  in  a  newspaper  is  very 
different. 

And  even  in  cases  of  libel,  it  is  better  to  exhaust  every  other  method 
first.  If  the  libel  has  appeared  in  a  newspaper,  write  to  the  editor  a  calm 
and  dignified  letter  in  answer,  avoiding  all  "  smart  writing,"  and  indulging 
in  no  tu  qnoqiie.  This  will  probably  bring  an  apology  from  tl)e  writer  of 
the  original  letter.     And  a  prompt  apology  and  retractation  of  the  charge 

1  See  Davis  v.  Duncan,  L.  R.  9  C.  P.  396  ;  43  L.  J.  C.  P.  185  ;  22  W.  R.  575  ;  30 
L.  T.  464  ;  ante,  p.  52. 

2  Anlc,  p.  228.  *  Ante,  pp.  306,  307. 

388 


CONSIDER ATIO^'S    BEFORE   ^YEIT.  *  451 

is  always  "worth  more  to  the  plaintiff  than  any  amount  of  damages.  If, 
however,  no  apology  comes,  but  another  letter  worse  than  the  first,  the 
plaintijff  should  lie  by  awhile  till  his  adversary  has  thoroughly  committed 
himself  by  sonie  third  letter  palpably  outrageous.  Now  the  plaintiff  can 
show  a  systematic  course  of  persistent  libelling,  which  is  cogent  evidence 
of  malice,  entitling  him  to  heavy  damages. 

Next,  before  issuing  a  writ,  the  plaintiff  should  make  sure  what  were 
the  defendant's  exact  words.  Of  a  libel,  a  copy  can  as  a  rule  be  easily 
obtained  ;  but  with  slanders  it  is  different.  What  has  reached  the  plain- 
tiff's ears  is  probably  a  much  exaggerated  version  of  what  defendant  actu- 
ally said.  The  plaintiff  is  usually  the  last  person  who  hears  the  charge 
against  him  ;  and  words  not  actionable  per  se  are  frequently  converted  into 
actionable  words  in  the  intermediate  process ;  for  we  know  that :  — 

"  Fama,  mahim  quo  non  aliud  velocius  iillum, 
Mobilitate  viget,  virescjue  acquirit  eundo, 

m  *  Mk  *  *  *  * 

Tarn  ficti  pravique  tenax,  quam  nuntia  veri." 

ViiiG.  /En.  IV.  174,  188. 

The  person  slandered  should,  therefore,  take  a  friend  with  him  (wlio  will 
make  a  good  witness)  and  go  and  ask  the  alleged  slanderer  :  —  "Is  it  true 
that  you  have  been  saying  this  of  me?"  If  he  denies  that  he  ever  said  so, 
as  is  very  possible,  appear  at  all  events  to  believe  him,  and  bring  no 
action ;  if  he  confesses  that  he  did  say  so,  but  has  since  discovered  he  was 
mistaken,  get  him  to  write  you  a  letter  acknowledging  his  error,  to 
show  *  any  one  if  necessary,  and  then  forgive  him.  If,  however,  *  452 
he  admits  that  he  said  so  and  reiterates  the  charge,  then  you  are 
provided  by  anticipation  with  the  best  possible  evidence  of  publication  — 
an  admission  by  the  defendant.  Lord  Denman  says,  in  Griffiths  v.  Lewis,^ 
"  it  is  never  wise  to  bring  an  action  for  slander  unless  some  such  course 
has  been  taken."  ^ 

As  soon  as  it  is  clear  what  is  the  precise  charge  made  by  the  defendant, 
the  next  question  will  be  :  —  Are  the  words  actionable  1  On  this  point 
the  plaintiff  should  consult  his  solicitor,  who  should  consult  c.  II.  ante,  pp. 
17-92.  If  the  words  are  not  actionable  witliout  special  damage,  the 
plaintiff  must  wait  for  some  damage  to  accrue  before  commencing  his 
action. 

Parties. 

Next,  it  must  be  determined  who  is  the  right  plaintiff,  and  who  the 
proper  defendant;  as  to  which  see  c.  XII.  ante,  pp.  34:4-372.     In  cases 

1  7  Q.  B.  61  ;  14  L.  J.  Q.  B.  199  ;  9  Jur.  370. 

2  See  his  remarks,  ante,  p.  231. 

■       389 


*  452  PRACTICE   A:SD   EYIDE^X^E. 

of  slander  where  special  damage  is  essential  to  the  action,  be  careful  to  sue 
only  that  person  whose  actual  utterance  of  the  slander  caused  the  special 
damage.  Do  not  sue  the  originator  of  the  falsehood,  if  his  utterance  of  it 
has  produced  no  direct  injury  to  the  plaintiff.  In  cases  of  written  libels, 
it  is  often  wise  to  sue  the  person  who  actually  wrote  the  libel  as  well  as 
his  master  or  employer  who  directed  or  sanctioned  what  he  wrote.  For 
thus,  should  the  plaintiff  fail  to  prove  agency  at  the  trial,  he  will  yet  be 
entitled  to  judgment  against  the  clerk  or  servant.  In  a  recent  case-^  the 
libel  was  contained  in  a  business  letter  written  by  the  wife  of  a  tradesman  : 
the  plaintiff  sued  the  husband  alone,  and  failed  to  prove  that  the  libellous 
portion  of  the  letter  was  written  Avith  the  husband's  knowledge  or  consent. 
The  plaintiff's  counsel  thereupon  applied  to  have  the  wife  added  as  co- 
defendant  ;  but  Grove,  J.,  ruled  that  it  was  too  late  to  do  so.  Had  the 
wife's  name  been  added  in  the  first  instance,  the  plaintiff  must  have  suc- 
ceeded, whether  the  husband  knew  what  his  wife  was  writing  or  not. 

Where  a  libel  has  appeared   in  a  newspaper,  the  person  defamed 

*  453    can  sue  the  editor,  jirinter,  publisher,  or  author,  or  *  some,  or  all 

of  them.  He  would  naturally  prefer  to  sue  the  author,  and  should 
write  to  the  editor  demanding  the  writer's  name  and  address.  This  infor- 
mation the  editor  will,  as  a  rule,  refuse  to  give.  It  is  generally  regarded 
as  a  point  of  honor  with  an  editor  not  to  disclose  the  name  of  any  of  his 
regular  contributors.  In  Harle  v.  Catherall  and  others,^  Martin,  B.,  says, 
"  When  a  man  went  to  an  editor  to  ask  for  the  name  of  an  anonymous 
correspondent,  no  blame  attached  to  the  editor  for  refusing  to  give  the 
name.  Indeed,  an  editor  would  almost  be  mad  to  do  so.  He  should 
blame  no  editor  for  so  refusing."  The  plaintiff  must  in  such  a  case  be 
content  to  sue  the  proprietor  of  the  paper. 

Letter  before  Action. 

In  all  cases,  before  actually  issuing  a  writ,*the  plaintiff's  solicitor  should 
write  to  the  defendant,  demanding  an  apology  and  threatening  proceedings. 
If  the  charge  was  made  pubhcly,  a  public  apology  should  be  demanded. 
If  only  a  few  heard  it,  the  plaintiff  should  be  content  with  a  letter  of 
apology,  fully  retracting  the  charge  ;  this  could  be  shown  to  every  one  who 
heard  what  the  defendant  said. 

Notice  of  Action. 

Sometimes  besides  the  letter  before  action  it  is  necessary  to  give  a  formal 
notice  of  action  a  month  and  a  day  before  the  writ  is  issued  —  e.g.,  where 
a  libel  is  written  by  any  one  acting  bond  fide  in  the  execution  of  any  statu- 

1  Pollard  V.  Green,  Bristol  Summer  Assizes,  1880,  2  14  L.  T.  802. 

C90 


NOTICE   OF   ACTION,    CHOICE   OF   COURT,    ETC.  *  453 

tory  duty.^  In  such  cases,  a  letter  asking  for  the  name  of  the  writer's  in- 
formant, and  threatening  proceedings  if  the  name  be  not  disclosed,  will  not 
be  a  sufficient  notice  within  the  statute.^ 

Choice  of  Court. 

Next,  in  what  Court  shall  the  action  be  brought  1  The  County  Court 
has  no  jurisdiction,^  unless  by  consent  of  both  parties;*  (although  the 
action  may  subsequently  be  remitted  to  the  County  Court/) 
*  Where  the  particulars  before  a  County  (^ourt  judge  disclose  a  *  454 
cause  of  action  for  libel  or  slander,  he  has  no  power  to  amend 
them  so  as  to  give  himself  jurisdiction,  e.g.,  by  turning  the  case  into  an 
action  for  false  imprisonment.®  The  Courts  of  Equity  before  the  Judica- 
ture Act  had  no  cognizance  over  libels  or  slander,  whether  public  or  private, 
except  as  contempt  of  their  own  Courts.''  The  Chancery  Division  now 
undoubtedly  has  jurisdiction  to  try  a  case  of  libel.*  But  it  is  obviously 
inexpedient  to  commence  such  an  action  there;  for  libel  or  no  libel  is 
peculiarly  a  question  for  a  jury,  and  the -judges  of  the  Chancery  Division 
never  have  a  jury.^  In  Thomas  v.  Williams,  the  defendant  never  expressed 
a  wish  for  a  jury  till  the  whole  of  the  evidence  on  both  sides  had  been 
taken  ;  had  he  applied  sooner.  Fry,  J.,  would  have  changed  tlie  mode  of 
trial. ^^  The  only  object  in  going  to  the  Chancery  Division  would  be  to  ob- 
tain an  injunction;  and  it  is  clear  now  that  an  interim  injunction  cannot 
be  obtained  on  an  interlocutory  application.-^^  And  at  the  full  liearing  of 
the  case,  after  the  trial,  an  injunction  can  be  obtained  as  readily  in  the 
Common  Law  Divisions  as  in  the  Chancery  Division. ^^  For  every  reason, 
therefore,  it  is  best  to  issue  the  writ  in  one  of  the  Common  Law  Divisions 
of  the  High  Court  of  Justice. 

District  Registry. 

The  plaintiff,  wherever  resident,  may,  if  he  pleases,  issue  a  writ  out  of 
the  registry  of  any  district ;  ^^  but  it  is  absolutely  useless  to  do  so,  unless 

1  5  &  6  Vict.  c.  97,  s.  4.  2  Morris  v.  Smith,  10  A.  &  E.  188. 

8  9  &  10  Vict.  c.  95,  s.  58.  *  19  &  20  Vict.  c.  108,  s.  23. 

6  See  j)ost,  pp.  468,  565.  6  Hopper  v.  Warbuvton,  7  L.  T.  722. 

I  Roach  V.  Read  and  another,  2  Atk.  469  ;  2  Dick.  794. 

8  Thomas  v.  WUliams,  14  Ch.  D.  864  ;  49  L.  J.  Ch.  605  ;  28  W.  R.  983  ;  43  L. 
T.  91. 

9  Clark  V.  Cookson,  2  Ch.  D.  746  ;  45  L.  J.  Ch.  752  ;  24  W.  R.  535  ;  34  L.  T. 
646  ;  Murdock  v.  Warner,  4  Ch.  D.  750  ;  46  L.  .1.  Ch.  121  ;  25  W.  R.  207  ;  35  L.  T. 
748.  JO  See  14  Ch.  D.  871. 

II  Prudential  As.siirance  Co.  v.  Knott,  L.  R.  10  Ch.  142;  44  L.  J.  Ch.  192;  23 
W.  R.  249  ;  31  L.  T.  866. 

12  Saxby  v.  Easterbrook,  3  C.  P.  D.  339  ;  27  W.  R.  188.  "  Order  V.  r.  1. 

391 


*454  PRACTICE  AND   EVIDENCE. 

the  plaintiffs  solicitor  has  his  office  within  the  district.'^     The  districts 

of  the  district  registries  are  defined  by  an  Order  in  Council  issued  under 

s.  GO  of  the  Judicature  Act,  1873,  on  August  12th,  1875  :  they  are 

*  455    as  a  rule  co-extensive  *  with  the  County  Court  district  of  the  same 

place.  Again,  there  is  very  little  advantage  in  issuing  a  writ  out  of 
a  District  Registry,  unless  all  the  defendants  reside  or  carry  on  business 
v.'ithin  the  district ;  as  if  one  of  tliem  neither  resides  nor  carries  on  busi- 
ness within  the  district,  he  is  almost  sure  to  appear  in  London.  If,  how- 
ever, all  parties  and  their  respective  solicitors  reside  or  carry  on  business 
within  the  district,  then,  if  the  action  be  simple  and  straightforward,  it  may 
be  as  well  to  issue  the  Avrit  out  of  the  District  Registry.  Instructions  to 
draw  pleadings  may  in  that  case  be  sent  direct  to  counsel  in  town  by  post ; 
and  thus  some  few  agency  expenses  will  be  saved.  But  if  there  are  likely 
to  be  many  applications  at  chambers,  e.g.,  over  the  Interrogatories  and  their 
Answers,  or  as  to  a  plea  of  Justification,  then  it  would  be  much  better  to 
issue  the  writ  in  London  in  the  usual  way.  Even  where  the  defendant  re- 
sides and  carries  on  business  within  the  district,  he  may  after  appearance 
there  remove  the  action  to  London  as  of  right  at  any  time  before  delivering 
his  statement  of  defence,  by  merely  giving  a  notice  under  Order  XXXV. 
r.  12.  After  the  expiration  of  the  time  for  delivering  defence  an  order  is 
requisite.^  Of  course  issuing  the  writ  out  of  the  Central  Office  in  London 
in  no  way  prevents  the  trial  taking  place  at  the  assizes. 

Statute  of  Limitations. 

It  is  seldom  that  a  plaintiff  in  an  action  of  defamation  allows  his  remedy 
to  be  barred  by  lapse  of  time.  He  is  generally  too  eager  to  commence  pro- 
ceedings, and  will  not  wait  till  his  special  damage  has  fully  accrued.'  Still 
the  Duke  of  Brunswick  waited  nearly  eighteen  years ;  it  may  be  as  Avell 
therefore  to  state  that  an  action  of  slander  for  words  actionable  per  se  m'ust 
be  brought  "within  tioo  years  next  after  the  words  spoken,  and  not  after,"* 
and  that  an  action  for  libel  or  of  scandalum  magnatum  must  be  brought 
within  six  years  from  the  date  of  publication.^     In  cases  of  slander 

*  456    of  title,  and  indeed  whenever  the  words  are  actionable  *  only  by 

reason  of  special  damage,  the  plaintiff  has  six  years  within  which 
to  sue  ;  and  the  time  does  not  begin  to  run  till  the  damage  has  actually  been 
sustained.^     This  is  in  accordance  with  the  principle  of  Bonomi  v.  Back- 

1  See  Order  IV.  r.  3« ;  R.  S.  C.  Feb.  1876,  r.  3.  2  Order  XXXV.  r.  13. 

3  See  Ingram  v.  Lawson,  6  Bing.  N.  C.  212  ;  8  Scott,  471  ;  9  C.  &  P.  326  ;  4  Jur. 
151  ;  Goslin  v.  Corry,  7  M.  &  Gr.  342  ;  8  Scott,  N.  R.  21. 
*  21  Jac.  I.  c.  16,  s.  3. 

6  Lord  Saye  &  Seal  v.  Stephens,  cited  Cro.  Car.  535  ;  Litt.  342. 
'  Saunders  v.  Edwards,  1  Sid.  95. 

392 


•      FORMER   PROCEEDINGS.  *  456 

house.'^  Lord  Campbell  was  evidently  under  a  misapprehension  as  to  the 
effect  of  stat.  21  Jac.  I.  c.  16,  in  his  remarks  in  9  H.  L.  C.  p.  513.  In  all 
other  cases  the  time  runs  from  the  date  of  publication,  (a)  unless  indeed  the 
party  then  entitled  to  bring  the  action  be  under  any  disability,  or  be  beyond 
the  seas.^  But  if  once  such  disability  be  removed  and  the  time  begin  to 
run,  nothing  afterwards  can  stop  it. 

But  the  publication  relied  on  to  oust  the  statute  need  not  be  the  original 
or  substantial  publication.  Thus  if  any  agent  of  the  plaintiff  can  induce 
the  defendant  to  sell  him  an  old  copy  of  the  libel,  published  many  years 
ago,  such  second  publication,  although  contrived  by  the  plaintiff  for  the 
very  purpose,  will  be  sufficient  to  disprove  the  plea  of  the  Statute  of  Lim- 
itations. And  that  plea  being  once  ousted  the  jury  will  not  be  confined  to 
that  single  publication  within  the  six  years,  but  may  give  damages  generally 
for  the  original  dissemination  of  the  libel.^ 


Former  Proceedings. 

That  a  previous  action  has  already  been  brought  and  damages  recovered 
against  the  same  defendant  for  the  same  words  is  a  bar  to  any  subsequent 
action,  even  though  fresh  damage  has  since  arisen  therefrom.  For  the  jury 
in  the  former  action  must  be  taken  to  have  assessed  the  damages  once  for  all ; 
and  the  probability  or  possibility  that  this  subsequent  damage  would  follow 
should  have  been  submitted  to  their  consideration  then.  And  this  is  so 
whether  the  words  are  in  themselves  actionable  or  not.*  So  if  the  prior 
action  was  unsuccessful,  this  will  also  be  a  bar  to  the  action ;  unless  indeed 
the  plaintiff  was  only  nonsuited  on  some  technical  ground  and  the 
judge  in  giving  *  judgment  of  nonsuit  expressly  declared  that  it  *  457 
Avas  a  common  law  nonsuit,  and  that  the  plaintiff  might  bring  a 
second  action. 

But  it  must  be  clear  that  the  cause  of  action  is  the  same  in  both  cases. 
Thus  where  the  declaration  in  an  action  of  slander  alleged  that  the  defend- 
ant spoke  of  the  plaintiff,  in  the  ivay  of  his  trade,  the  words,  "  He  cheated 
me;"  "  He  is  a  thief  and  robbed  me  of  £100;"  and  contained  an  aver- 
ment of  special  damage,  the  defendant  pleaded  a  former  judgment  recovered 
for  the  same  grievances  ;  but  the  record  of  the  previous  action  showed  the 
slanderous  words  to  have  been,  "  That  thief  is  a  villain,  a  scoundrel  and  a 

1  9  H.  L.  C.  50.3  ;  E.  B.  &  E.  662  ;  34  L.  J.  Q.  B.  181. 

2  21  Jac.  1.  c.  19,  s.  7  ;  4  &  5  Anne,  c.  3  (al.  c.  16),  s.  19  ;  3  &  4  Will.  IV.  c.  42, 
s.  7  ;  19  &  20  Vict.  c.  97,  s.  12. 

8  Duke  of  Brunswick  v.  Harmer,  14  Q.  B.  185  ;  19  L.  J.  Q.  B.  20  ;  14  Jur.  110  ; 
3C.  &K.  10.  4  ^^ttc,  p.  317. 

(a)  Barnard  v.  Boulware,  5  Mo.  454. 

393 


*457  PRACTICE   AND   EVIDENCE. 

rascal,  and  I  can  prove  him  a  tliief  at  any  moment ; "  and  it  neither  alleged 
that  the  words  were  spoken  of  the  plaintiff  in  the  way  of  his  trade,  nor 
contained  an  averment  of  special  damage.  This  was  held  to  be  no  bar  to 
the  action.  "  I  cannot  think," said  Crompton,  J.,  "that  the  cause  of  action 
in  that  record  which  contains  words  charging  the  plaintiff  with  felony,  is 
the  same  cause  of  action  as  that  in  the  present  declaration,  which  imputes 
a  charge  against  the  plaintiff  as  a  trader."  ^ 

So,  too,  a  previous  recovery  against  another  person  may  be  a  bar  to  the 
present  action,  if  the  former  defendant  was  jointly  concerned  with  the  pres- 
ent defendant  in  the  very  publication  now  sued  on.  Thus  if  A.  &  B.  be  in 
partnership  either  as  printers  or  publishers  of  a  newspaper,  a  previous  judg- 
ment recovered  against  A.  would  be  a  bar  to  any  action  against  B.  for  the 
same  libel,  even  though  the  judgment  obtained  in  the  prior  action  be  net 
satisfied.^  But  this  is  only  because  they  ought  to  have  been  sued  jointly, 
and  could  have  been  so  sued  before  the  Judicature  Act.  AVhere  two  are 
severally  liable,  judgment  against  one  is  no  bar  to  an  action  against  the 
other.  Thus,  a  previous  judgment  against  the  proprietor  of  a  newspaper, 
even  though  satisfied,  is  no  bar  to  an  action  for  the  same  libel  against  the 
author.^  A  fortiori  that  heavy  damages  had  been  recovered  against 
*  458  one  newspaper  is  no  bar  to  an-  action  against  *  another  newspaper 
•wliich  has  published  the  same  libel.  Such  previous  recovery  should 
not  even  be  mentioned  to  the  jury  in  mitigation  of  damages ;  *  nor  should 
it  be  stated  that  such  other  actions  are  pending.*  In  America  it  seems  no 
judgment  against  another,  whether  jointly  or  severally  liable,  will  be  a  bar, 
unless  it  be  satisfied.® 

Joinder  of  Causes  of  Action. 

The  Judicature  Act  gives  a  plaintiff  very  wide  powers  of  joining  several 
causes  of  action  in  one  writ ;  but  as  a  rule  in  cases  of  libel  and  slander  the 
plaintiff  should  not  avail  himself  of  these  provisions.  Defamation  is  a 
matter  sui  generis,  and  it  would  be  imprudent  to  complicate  the  issue  by 
joining  irrelevant  claims.  Of  course  any  number  of  libels  or  slanders  pub- 
lished by  the  same  defendant  may  well  be  sued  on  in  the  same  action, 

« 

1  Wadsworth  v.  Bentley,  23  L.  J.  Q.  B.  3  ;  17  Jur.  1077 ;  2  C.  L.  R.  127  ;  1  B.  C. 
Cases  (L.  &  M.),  203. 

2  Brown  v.  Wootton,  Cro.  Jac.  73  ;  Yelv.  67  ;  Moo.  762  ;  King  v.  Hoare,  13  M.  & 
W.  494,  504  ;  Biinsmead  v.  Harrison,  L.  R.  7  C.  P.  .'547  ;  41  L.  J.  C.  P.  190  ;  20  W.  R. 
784  ;  27  L.  T.  99,  followed  in  Ex  parte  Drake,  In  re  Ware,  5  Ch.  D.  866  ;  25  W.  R.  641 ; 
36  L.  T.  677. 

3  Frescoe  v.  May,  2  F.  &  F.  123.  *  Creevy  v.  Carr,  7  C.  &  P.  64. 
6  Harrison  v.  Pearce,  1  F.  &  F.  567;  32  L.  T.  (Old  S.)  298. 

6  Lovejoy  v.  Murray,  3  Wallace  (Supr.  Ct.),  1;  Thomas  v.  Rumsay,  6  Johns.  (N.Y.) 
26;  Brown  v.  Hirlev,  5  Upper  Canada,  Q.  B.  Rep.  (Old  S.)  734. 

394 


JOINDER   OF    CAUSES    OF   ACTION.  *  458 

unless  they  be  wholly  disconnected,  (a)  So,  too,  a  claim  for  malicious 
prosecution,  or  wrongful  dismissal,  or  even  assault  may  be  joined,  if  it  arises 
out  of  the  same  circumstances,  and  will  be  substantiated  by  the  same  wit- 
nesses, as  the  claim  for  libel  or  slander.  In  a  recent  case,  where  the  plain- 
tiff alleged  that  a  foreign  merchant  and  his  Manchester  agent  had  conspired 
to  libel  the  plaintiff  in  the  way  of  his  trade,  the  Court  allowed  this  joint 
cause  of  action  to  be  joined  with  claims  against  each  defendant  severally 
for  the  same  libels  or  others  of  the  same  class.  ^ 

Claims  by  plaintiffs  jointly  may  be  joined  with  claims  by  them  or  any 
of  them  separately  against  the  same  defendant.^  Claims  by  or  against  hus- 
band and  wife  may  be  joined  with  claims  by  or  against  either  of  them 
separately.*  But  these  rules  are  expressly  declared  (r.  7)  to  be  subject  to 
rr.  1,  8,  9  of  Order  XVII.,  which  enact  that  if  a  plaintiff  unites  in  the  same 
action  several  causes  of  action  which  cannot  be  conveniently  tried  or  dis- 
posed of  together,  a  Master  or  District  Eegistrar  shall  on  the  ap- 
plication *  of  the  defendant  strike  out  some  of  such  causes  of  action,  *  459 
or  order  separate  trials  to  be  had. 

Indorsement  on  Writ. 

The  writ  must  be  indorsed  with  a  plain  statement  of  the  nature  of  the 
action:  —  e.g.,  "The  plaintiff's  claim  is  for  damages  for  libel"  or  "for 
slander  "  or  "  for  libel  and  slander."  The  words  "  and  for  an  injunction  " 
may  be  added.*  But  in  cases  of  newspaper  libel,  it  is  as  well  to  give  more 
particulars  :  —  "  The  plaintiff's  claim  is  for  a  libel  on  him  published  by  the 

defendant  in  the Gazette  for  Friday,  November  5th,   1880."     This 

fuller  form  is  useful  as  identifying  the  libel  in  case  judgment  should  be 
allowed  to  go  by  default. 

It  is  not  necessary  to  state  what  sum  is  asked  as  damages  ;  for  they  must 
always  be  unliquidated  in  these  actions.  But  if  the  plaintiff  does  so,  he 
should  be  sure  to  ask  enough,  for  although  he  may  recover  less,  he  cannot 
recover  more,  than  the  sum  claimed  on  the  writ ;  unless  the  judge  at  the 

1  Desilla  v.  Schunck  &  Co.  &  Fels  &  Co.,  Weekly  Notes,  1880,  p.  96. 

2  Order  XVII.  r.  6.  '  s  Order  XVII.  r.  4. 
*  See  ante,  p.  454. 

[a)  Different  sets  of  words  may  in  Mis-  the   same   count.      Dioyt  v.  Tanner,    20 

sonri  be  embraced  within  the  same  count  Wend.  190.    See  Bloom  v.  Bloom,  5  Serg. 

spoken  on  different  occasions,  if  they  im-  &  R.  391.     Words  of  different  import  may 

port   the   same    offence.       Pennington   v.  be  set  out  in  the  same  declaration.     Hall 

Meeks,  46  Mo.  217.     ^  ./brijori  if  said  at  v.    Nees,    27   III    411.       And  counts    in 

the  same  time.      Rathbiim   v.    Eiiiigh,   6  slander  in  libel  may  be  joined.     Noonan 

Wend.  407;  Churchill  V.  Kimball,  3  Ohio,  v.    Orton,    32   Wis.    IOg!       See    Hoyt  v. 

409.     Non-actionable  words  may  in  New  Smith,  32  Vt.  304. 
York  be  joined  with  actionable  words  in 

395 


*  459  PRACTICE  AND  EVIDENCE. 

trial  will  consent,  after  verdict,  to  amend  the  writ  under  Order  XXVII. 
r.  11;  E.  S.  C.  Feb.  1876,  r.  6. 

At  the  same  time  it  is  foolish  to  claim  an  extravagant  amount  as  it  may- 
prevent  an  advantageous  settlement.  The  defendant  should  always  be 
described  on  the  writ  with  reasonable  certainty ;  his  Christian  and  sur- 
name should  both  be  stated,  if  possible,  so  as  to  facilitate  service.  Corpo- 
rations should  be  described  by  the  corporate  name.  But  inaccuracies,  or 
mere  misnomers,  are  immaterial,  if  not  misleading ;  and  if  they  are  in  any 
way  misleading,  the  indorsement  may  be  amended  by  a  judge  at  chambers, 
under  Order  III.  r.  2,  who  will  also  dispense  with  any  re-service.  The 
writ  must  also  be  indorsed  with  the  address  of  the  plaintiff,  and  the  name 
and  place  of  business  of  his  solicitor.-'  The  writ  remains  in  force  twelve 
months  from  date  instead  of  six  months,  as  formerly  ;  ^  and,  if  any  defend- 
ant has  not  been  served  with  it,  the  plaintiff,  by  leave  of  a  master  or  dis- 
trict registrar,  on  proof  that  reasonable  efforts  have  been  made  to  serve  the 
writ,  or  for  other  good  reason,  may  renew  it  for  another  six  months.^  The 
original  writ  must  be  produced  on  the  application  for  renewal.* 

*  460    *  But  a  writ  will  not  be  renewed  so  as  to  bar  the  Statute  of  Limita- 

tions after  the  period  has  expired.^  Concurrent  writs  may  be  issued 
at  any  time  witliin  the  twelve  months  for  which  the  original  writ  is  issued, 
and  continue  in  force  as  long  only  as  the  original.® 


Service  of  the  Writ. 

No  service  of  the  writ  is  required  where  the  defendant,  by  his  solicitor, 
a^Tees  to  accept  service  and  enter  an  appearance  ; ''  in  other  cases  .the  ser- 
vice of  the  writ  must,  wherever  practicable,  be  personal.*  If,  however, 
from  any  cause  the  plaintiff  is  unable  to  effect  prompt  personal  service,  he 
should  apply  to  a  judge  at  chambers  for  an  order  for  substituted  or  other 
service,  or  for  the  substitution  of  notice  for  service.  Such  an  application 
must  be  supported  by  affidavit  setting  forth  the  grounds  upon  Avhich  the 
application  is  made,®  e.g.,  that  the  defendant  had  absconded,  and  that  his 
address  could  not  be  ascertained ; '°  that  two  or  more  calls  had  been  made 
at  his  residence,  and  a  copy  of  the  writ  left  there  for  him  ;  ^'  or  that  his 

1  See  Order  IV.  rr.  1,  2,  2a,  and  3a  ;  R.  S.  C.  Feb.  1876,  rr.  2,  3. 

2  C.  L.  P.  Act,  1852,  s.  11.  3  Order  VIII.  r.  1. 

*  DaviesD.  Garland,  1  Q.  B.  D.  250  ;  45  L.  J.  Q.  B.  137  ;  24  W.  R.  252  ;  33  L.  T. 
727. 

s  Doyle  v.  Kaufman,  3  Q.  B.  D.  7 ;  47  L.  J.  Q.  B.  2  ;  26  W.  R.  93. 

6  Order  VI.  r.  1.  ^  Order  IX.  r.  1. 

8  Order  IX.  r.  2.  »  Order  X. 

M  Waters  v.  Waters,  24  W.  R.  190  ;  Hartley  v.  Dilke,  35  L.  T.  706. 
u  Capes  V.  Brewer,  24  W.  R.  40. 

396 


SERVICE   OF   THE   WRIT.  *460 

only  known  address  is  a  club.^     It  should  also  show  a  probability  of  the 
substituted  service  coming  to  the  defendant's  knowledge.^ 

The  person  serving  a  writ  must  be  able  both  to  read  and  to  write;  it 
may  be  necessary  for  him  to  swear  that  the  copy  served  was  a  true  copy, 
therefore  he  should  be  able  to  read  ;  and  he  is,  by  Order  IX.  r.  13,  required 
to  indorse  on  the  writ  the  date  of  service,  therefore  he  must  be  able  to 
write.  Service  may  not  be  effected  on  Sunday.^  Service  may  be  made  in 
any  county ;  but  not  out  of  jurisdiction  without  special  leave.'*  A  true 
copy  of  the  writ  should  be  served,  but  the  person  serving  it  should  always 
have  the  original  with  him  to  show  to  the  defendant,  should  he  require  to 
see  it. 

*  Where  the  action  is  against  husband  and  wife,  service  on  the  *  461 
husband  will  be  sufficient ;  but  a  judge  at  chambers  may  order  ser- 
vice on  the  wife  when  necessary,^  as,  e.g.,  where  the  husband  happens  to 
be  abroad.  AVhen  an  infant  is  defendant,  service  on  his  or  her  father  or 
guardian,  or,  if  none,  then  upon  the  person  with  whom  he  or  she  resides, 
will  be  good,  unless  otherwise  ordered.® 

When  the  defendant  is  a  lunatic  or  person  of  unsound  mind,  service  on 
the  committee  of  the  lunatic  or  on  the  person  with  whom  the  person  of  un- 
sound mind  resides,  or  under  whose  care  he  or  she  is,  will  be  deemed  good 
service,  unless  a  master  at  chambers  otherwise  orders.'' 

Service  may  be  effected  upon  a  firm  by  serving  any  one  of  the  partners, 
or,  at  the  firm's  principal  place  of  business,  upon  any  person  having  the 
control  or  management  of  the  partnership  business  there.*  So  where  the 
firm  really  consists  of  only  one  person. **  Whenever  by  any  statute  provi- 
sion is  made  for  service  of  any  writ  of  summons,  or  other  process,  upon  any 
corporation,  or  other  body,  or  number  of  persons,  the  writ  must  be  served 
in  manner  so  provided.-'"  There  are  such  provisions  in  the  Companies 
Clauses  Act,  1845,"  s.  135;  in  the  Lands  Clauses  Act,  1845,^^  s.  134; 
and  the  Railways  Clauses  Act,  1845,^^  s.  138,  So,  too,  writs  issued  against 
a  corporation  aggregate  may  be  served  on  the  mayor,  head  officer,  town 
clerk,  clerk,  treasurer,  or  secretary  of  such  corporation,  by  the  C.  L.  P. 
Act,  1852,  s.  16.  And  writs  issued  against  a  company  registered  under  the 
Companies  Act,  1862,^^  may,  by  s.  62  of  the  Act,  be  served  by  leaving 
them  at  the  registered  office  of  the  company,  or  sending  it  by  post  in  a  reg- 

1  Rafael  i>.  Ongley,  24  W.  R.  857;  34  L.  T.  124. 

2  Cook  V.  Day,  2  Ch.  D.  218;  45  L.  J.  Ch.  611;  24  W.  R.  362  ;  Sloman  v.  The 
Governor  of  New  Zealand  (C.  A.),  1  C.  P.  D.  563;  46  L.  J.  C.  P.  185;  25  W.  R.  86; 
35  L.  T.  454;  Bitt.  15. 

3  29  Car.  II.  c.  7,  s.  6.  *  Order  XI.  r.  1,  ante,  p.  357. 

6  Order  IX.  r.  3.  «  Order  IX.  r.  4.  7  Order  IX.  r.  5. 

8  Order  IX.  r.  6.  9  Order  IX.  r.  6a;  R.  S.  C.  June,  1876,  r.  4'. 

10  Order  IX.  r.  7.  "8  Vict.  c.  16.  ^  8  VicL  c  IS. 

"  8  Vict.  c.  20.  "  25  &  26  Vict.  c.  89. 

397 


*  461  PRACTICE  AND   EVIDENCE. 

istered  letter  addressed  to  the  company  at  such  office.     But  it  is  quite  use- 
less to  serve  a  director,  even  where  the  company  has  no  office.^ 

*  462        *  The  person   serving  the  writ  must  (except  where  substituted 

service  has  been  ordered),^  within  three  days  at  most  after  such 
service,  indorse  on  the  writ  the  day  of  the  month  and  week  of  the  service, 
otherwise  the  plaintiff  cannot  proceed  by  default  for  non-appearance.^ 

Ai)X>earance. 

The  writ,  as  we  have  seen,  may  be  issued,  in  the  discretion  of  the  plain- 
tiff, either  in  London  or  in  any  district  registry.* 

If  issued  in  London,  a  defendant  must  enter  his  appearance  in  London.^ 
If  issued  in  a  district  registry,  any  defendant  residing  or  carrying  on 
business  within  the  district  must  appear  there ;  ®  but  any  defendant 
neither  residing  nor  carrying  on  business  in  the  district  may  appear  either 
in  the  district  registry  or  in  London.''  In  the  latter  case  the  action  will 
proceed  in  London.*  As  a  rule  I  should  always  advise  such  a  defend- 
ant to  appear  in  London.  But  if  he  does  so,  he  must  be  sure  on  the  same 
day  to  give  notice  of  his  appearance  to  the  plaintiff's  country  solicitor  in 
the  district  registry,  or  to  the  plaintiff  himself,  if  he  sues  in  person.^  As  if 
he  omit  to  do  so,  judgment  will  be  entered  against  him  in  the  district  reg- 
istry for  want  of  appearance,  and  such  judgment  being  regularly  entered 
will  not  be  set  aside  ;  at  all  events  not  without  a  strong  affidavit  of  merits.^^ 
Notice  to  the  London  agent  of  the  plaintiff's  country  solicitor  is  iusuffi- 
iCient.'^^ 

The  defendant  must  enter  an  appearance  to  the  writ  within  eight  days 
rafter  service  of  the  writ,  inclusive  of  the  day  of  service.  If  the  defend- 
ant be  out  of  the  jurisdiction,  a  time  will  be  named  in  the  order  giving 

1  Lawrenson  v.  The  Dublin  Metropolitan  Junction  Ry.  Co.,  37  L.  T.  32.  And  as 
■to  the  service  of  writs  on  foreign  corporations,  see  Scott  v.  Roj^al  Wax  Candle  Co.,  1 
•Q.  B.  D.  404  ;  45  L.  J.  Q.  B.  586  ;  24  W.  R.  668  ;  34  L.  T.  683  ;  Newby  v.  Van  Op- 
pen,  L.  R.  7  Q.  B.  293  ;  41  L.  J.  Q.  B.  148  ;  20  W.  R.  383  ;  26  L.  T.  164  ;  Mackereth 
V.  Glasgow  and  South  Western  Ry.  Co.,  L.  R.  8  Ex.  149  ;  42  L.  J.  Ex.  82  ;  21  W.  R. 
339  •  "^8  L  T.  167.  And,  generally,  as  to  service  of  a  writ  out  of  jurisdiction,  see 
Tott'enliam  i;."  Barry,  12  Ch.  D.  797  ;  48  L.  J.  Ch.  641;  28  W.  R.  180  ;  Harris  v. 
Fleming,  13  Ch.  D.  208  ;  49  L.  J.  Ch.  32  ;  28  W,  R.  389  ;  McStephens  v.  Carnegie, 
28  W.  R.  385  ;  42  L.  T.  309. 

2  Dymond  v.  Croft  (C.  A.),  3  Ch.  D.  512  ;  45  L.  J.   Ch.  604 ;  24  W.  R.  700  ;  35 

L.  T.  27. 

8  Order  iX.  r.  13.  "  Order  V.  r.  1. 

6  Order  XII.  r.  1.  ^  Order  XII.  r.  2. 

7  Order  XII.  r.  3.  8  Order  XII.  r.  5. 

9  Order  XII.  r.  6a;  R.  S.  C.  February,  1876,  r.  5. 

w  Order  XIII.  r.  5a;  R.  S.  C.  Dec.  1875,  r.  7  ;  Smith  v.  Dobbin  (C.  A),  3  Ex.  D. 
•338  ;  47  L.  J.  Ex.  65  ;  26  W.  R.  122  ;  37  L.  T.  777. 
"  Ih. 

398 


APPEARANCE.  *  463 

leave  to  effect  service,  within  which  *  he  must  appear.^  If  the  de-  *  463 
feiidant  be  described  in  the  writ  by  initials,  or  by  a  wrong  name, 
the  appearance  should  be  entered  in  his  true  name,  as  "John  William  Smith, 
sued  as  J.  W.  Smith,"  and  all  subsequent  pleadings  and  affidavits  should  be 
so  entitled.  An  infant  must  appear  by  his  guardian  in  the  guardian's  own 
name. 2  Partners  sued  in  the  name  of  their  firm  must  appear  individually 
in  their  own  names ;  ^  so  must  a  person  carrying  on  business  in  the  name 
of  a  firm.'*  In  either  case  all  subsequent  proceedings  nevertheless  continue 
in  the  name  of  the  firm.  An  appearance  may  be  entered  by  a  third  person, 
though  he  be  not  a  solicitor.^ 

A  defendant  may  appear  at  any  time  before  judgment ;  but  if  he  appear 
after  the  time  (eight  days)  limited  for  appearance,  he  must  on  the  same 
day  give  notice  thereof  to  the  plaintiff's  solicitor,  or  to  the  plaintiff  him- 
self if  he  sues  in  person.^  By  giving  this  notice,  he  will  be  in  the  same 
position  as  if  he  had  appeared  in  time  ;  but"  judgment  signed  after  appear- 
ance, though  plaintiff  have  no  notice,  is  irregular.'' 

I  should  never,  I  think,  advise  a  defendant  not  to  appear  to  an  action  of 
libel  or  slander,  unless  he  is  utterly  and  hopelessly  in  the  wrong,  and  at 
tlie  same  time  there  is  no  hope  of  compromise.  If  he  regrets  his  conduct, 
he  should  come  forward  and  say  so,  and  pay  money  into  Court  as  amends. 
And  after  appearance,  a  defendant  can  always  apply  at  chambers  for  leave 
to  withdraw  his  defence  and  to  let  judgment  go  by  default. 

Judgment  by  Default. 

"Where  any  defendant  fails  to  appear  to  a  writ  of  summons,  the  plaintiff 
must  before  taking  any  proceeding  upon  default  file  an  affidavit  of  service, 
or  of  notice  in  lieu  of  service  as  the  case  may  be.^     He  can  then  enter 
interlocutory  *  judgment,  and  a  writ  of  inquiry  will  issue  to  assess    *  464 
the  damages.^     But  if  the  .affidavit  of  service  be  afterwards  proved 
to  have  been  insufficient,  the  judgment  and  execution  may  be  set  aside. 

The  affidavit  of  service  should  be  made  by  the  process-server  himself,  if 
possible ;  but  an  affidavit  by  any  one  who  saw  service  effected  will  be  re- 
ceived, if  need  be.^"    It  should  be  properly  intituled  in  the  proper  Division 

1  Order  XI.  r.  4.  As  to  the  method  of  entering  an  appearance,  see  Order  XII.  rr. 
65,  7,  8,  and  9  ;  R.  S.  C.  April,  1880,  r.  6. 

2  Fitzgerald  v.  Villiers,  3  Mod.  236  ;  Jarman  v.  Lucas,  33  L.  J.  C.  P.  108. 

8  Order  XII.  r.  12.  *  Order  XII.  r.  12a  ;  R.  S.  C.  June,  1876,  r.  6. 

6  Oake  and  another  v.  Moorecroft,  L.  R.  5  Q.  B,  76  ;  39  L.  J.  Q.  B.  15  ;  18  W. 
R.  115. 

6  C.  L.  P.  Act,  1852,  s.  29  ;  Order  XII.  r.  15. 

T  Rhodes  v.  Bryant,  2  F.  &  F.  265  ;  Oake  and  another  v.  Moorecroft,  supra. 
8  Order  XIII.  r.  2.  9  Order  XIII.  r.  6. 

w  Goodtitle  v.  Badtitle,  2  Bos.  &  P.  120. 

399 


*  464  PRACTICE   AND   EVIDENCE. 

of  tlie  Court,  and  M'itli  the  names  of  all  the  parties  in  full.  If  any  'lefend- 
ant  be  in  any  way  misnamed  in  the  writ,  the  atfidavit  should  in  its  title 
follow  the  writ.^  Where  a  constructive  service  is  relied  on,  the  affidavit 
must  show  fully  why  such  service  should  be  deemed  good  service  on  the 
defendant.  Thus,  if  a  servant  or  agent  of  the  defendant  was  served,  facts 
must  be  stated  from  which  the  judge  can  infer  that  the  copy  has  actually 
reached  the  defendant's  hands."  The  affidavit  must  also  state  the  day  on 
whicli  the  indorsement  of  date  of  service  was  made  on  the  writ.^ 

A  sufficient  affidavit  of  service  being  tiled,  interlocutory  judgment  may 
immediately  be  entered,  and  a  writ  of  inquiry  issues  to  the  sheriff  bidding 
him  summon  a  jury  to  assess  the  damages  the  plaintiff  has  sustained.  As 
a  rule  the  plaintiff  does  not  recover  such  heavy  damages  from  a  sheriff's 
jury,  as  after  a  full  trial  at  Xisi  Prius.  There  is  a  provision  in  Order  XIII. 
r.  6,  that  a  judge  at  chambers  may  order  the  damages  to  be  ascertained  like 
any  other  issue  by  a  judge  and.  jury  or  by  a  referee.  But  it  would  be  A'ery 
difficult  to  obtain  such  an  order  in  a  case  of  libel  or  slander.  As  there  is 
no  statement  of  claim,  the  plaintiff  should  give  the  defendant  formal  notice 
a  reasonable  time  before  the  hearing  that  he  intends  to  offer  before  the 
under-sheriff  evidence  of  such  and  such  special  damage.  The  inquiry  is 
conducted  precisely  in  the  same  way  as  a  trial  at  Nisi  Prius,  except  that 
counsel  do  not  wear  wig  and  gown,  and  that  the  plaintiff  rmist  recover 
some  damages.  The  plaintiff  need  not  adduce  any  evidence  at  all  before 
the  under-sheriff,  but  merely  put  in  the  libel.  And  the  jury  will  not  in 
such  a  case  be  bound  to  give  him  nominal  damages  only.*  The  under- 
sheriff  before  the  Judicature  Act  had  jurisdiction  to  certify  for  costs.* 

*  465    *  I  presume  therefore  that  he  may  now  under  the  new  system,  on 

good  cause  shown,  deprive  a  plaintiff  of  costs.     But  he  would  ncA'er 
do  so  except  in  very  exceptional  circumstances. 

Judgment  by  default  may  be  set  aside  if  irregular  on  application  to  a 
master  at  chambers  or  to  a  district  registrar ;  but  such  application  must  be 
made  within  a  reasonable  time  after  defendant  has  notice  of  the  judgment.® 
And  even  if  the  judgment  be  regular,  the  master  or  district  registrar  will 
set  it  aside  upon  terms,  if  defendant  in  his  affidavit  accounts  for  his  non- 
appearance, and  sets  out  facts  which  show  that  he  has  a  good  defence  on 
the  merits.  8uch  an  application  should  be  made  promptly,  as  soon  as  the 
defendant  is  aware  that  judgment  has  been  signed. 

1  Simsv.  Prosser,  15  M.  &  W.  151.  ^  Sprightly  v.  Dunch,  2  Burr.  1116. 

8  Order  IX.  r.  13.  *  Tripp  v.  Thomas,  3  B.  &  C.  427. 

5  Craven  v.  Smith,  L.  R.  4  Ex.  146  ;  38  L.  J.  Ex.  90  ;  17  W.  R.  710;  20  L.  T.  400. 
«  R.  G.  Hil.  T.  1853,  r.  135  ;  Order  XXIX.  r  14. 
400 


MATTEKS   CONSIDERED   BY   DEFENDANT.  *  465 


Matters  to  be  considered  hy  the  Defendant. 

The  defendant  should  at  the  earliest  moment  after  being  served  with  the 
writ,  consider  the  advisability  of  apologizing.  He  may  pay  money  into  Court 
at  any  moment  after  service  of  the  writ ;  ^  and  offer  an  apology  in  mitiga- 
tion of  damages  under  Lord  Campbell's  Act,  ss.  1,  2.^  It  is  particularly 
desirable  in  the  case  of  a  newspaper  that  this  question  should  be  dealt  with 
at  once/in  order  that  the  apology  may  be  published  in  the  next  issue  of 
the  paper.  Counsel  will,  if  necessary,  send  advice  on  this  point  by  tele- 
gram. 

If,  however,  the  defendant  means  to  contest  the  action,  he  should  con- 
sider whether  the  plaintiff  has  shaped  his  claim  in  the  proper  way,  and 
also  whether  security  cannot  be  obtained  for  costs.  Thus,  if  an  infant  or 
person  of  unsound  mind  has  commenced  an  action  without  a  next  friend, 
the  defendant  should  take  out  a  summons  to  dismiss  the  action ;  and  the 
master  or  district  registrar,  if  satisfied  that  there  ought  to  have  been  a  next 
friend  will  dismiss  the  action  with  costs  against  the  solicitor.  So  if  a 
married  woman  sue  without  joining  her  husband.  If  in  the  same  action 
claims  by  the  plaintiffs  jointly  be  combined  with  claims  by  them  or  any 
of  them  separately  under  Order  XVI.  r.  1,  or  Order  XVII.  rr.  4,  5,  6,  the 
defendant  may  apply  to  have  such  claims  severed  on  the  ground  that 
they  cannot  be  conveniently  disposed  of  in  the  same  action,  if  such 
*  indeed  be  the  fact.^  But  such  an  application  would  probably  be  *  466 
unsuccessful  if  the  words  sued  on  be  the  same  in  each  case,  or 
were  published  simultaneously.  If  on  the  other  hand  two  or  more  actions 
be  unnecessarily  brought  against  the  same  defendant  either  alone  or  with 
others  for  the  same  words,  or  for  separate  publications  of  similar  words ;  or 
for  two  distinct  libels  or  slanders,  or  for  a  libel  and  a  slander,  all  arising 
out  of  the  same  transaction  and  intimately  connected  with  each  other ;  a 
master  at  chambers  will  consolidate  the  actions.*  An  application  for  con- 
solidation may  be  made  at  any  time  after  service  of  the  writs,  and  without 
any  consent  on  the  plaintiff's  part.^ 

If  the  writ  has  been  issued  in  a  district  registry,  the  defendant  may 
remove  the  action  as  of  right  to  London  at  any  time  after  appearance  and 
before  delivering  a  statement  of  defence.®  This  can  be  done  by  merely 
giving  a  notice  under  r.  12,  If  the  defendant  neglects  to  remove  it  before 
the  expiration  of  the  time  for  delivering  his  statement  of  defence,  he  must 

1  Order  XXX.  r.  1.  2  Ante,  p.  299.  «  Order  XVII.  rr.  1,  7,  8,  9. 

*  Order  LI.  r.  4  ;  Wlutely  v.  Adams,  15  0.  B.  N.  S.  392  ;  Jones  v.  Pritcliaid,  18 
L.  J.  Q.  B.  104  ;  6  D.  &  L.  529. 

5  Hollingsworth  v.  Brodiick,  4  A.  &  E.  646  ;  6  N.  &  U.  240  ;  1  II.  &  W.  691. 

6  Older  XXXV.  r.  13. 

26  401 


*  466  PRACTICE   AND   EVIDENX'E. 

apply  to  the  district  registrar  for  an  order  for  removal,  and  file  an  affidavit 
showing  good  cause  for  the  application. 

If  the  alleged  libel  was  published  by  order  of  either  House  of  Parliament, 
all  proceedings  will  be  stayed  at  once  on  production  of  a  certificate  to  that 
effect  by  the  clerk  of  the  House,  with  an  affidavit  verifying  such  cer- 
tificate.^ 

Security  for  Costs. 

An  order  will  generally  be  made  requiring  the  plaintiff  to  give  security 
for  costs,  if  he  be  a  foreigner,  out  of  jurisdiction  at  the  moment  and  hold- 
ing no  land  in  England,  or  a  felon  undergoing  imprisonment  or  penal 
servitude,  or  a  bankrupt  or  a  liquidating  debtor.  If  there  be  more  than 
one  plaintiff  the  defendant  will  not  be  entitled  to  security  for  costs  unless 
they  all  come  within  one  or  other  of  the  preceding  classes.  Security  is 
generally  confined  to  the  future  costs  of  the  action ;  but  it  may  include 
costs  already  incurred,  if  they  are  of  any  considerable  amount,  and 

*  467    the  defendant  has  not  been    guilty   of  *  laches  in   not   applying 

sooner.^ 
Any  application  for  security  for  costs  must  be  made,  promptly ;  that  is 
within  a  reasonable  time  after  appearance ;  or  if  the  defendant  Avas  not 
then  aware  of  the  facts  entitling  him  to  apply,  then  within  a  reasonable 
time  after  such  facts  come  to  his  knowledge,  and  before  taking  any  further 
step  in  the  action.  If  the  order  be  made,  it  will  be  a  stay  of  proceedings 
till  security  be  given  j  and  if  such  security  be  not  given  w'^hin  a  reasonable 
time,  the  defendant  may  take  out  a  further  summons  calling  on  the  plain- 
tiff" to  show  cause  why  the  action  should  not  be  dismissed  with  costs  unless 
security  be  given  by  a  fixed  day.^  Where  the  plaintiff,  a  foreigner,  had  in 
an  action  of  libel  been  ordered  to  find  security  for  costs  to  the  amount  of 
£400,  and  had  given  security  to  that  amount,  the  Court  refused  to  increase 
it  in  spite  of  an  affidavit  to  the  effect  that  certain  necessary  witnesses 
resided  abroad  and  that  the  expense  of  obtaining  their  evidence  would 
greatly  exceed  £400.*  What  is  a  reasonable  time  for  finding  security 
must  depend  on  the  special  circumstances  of  each  particular  case ;  and  in 
determining  it,  the  Court  wiU  have  regard  to  the  amount  ordered  to  be 
paid.^     Where  a  bond  is  to  be  given  as  security  for  costs,  it  shall,  unless  a 

1  3  &  4  Vict.  c.  9,  Appendix  C,  post,  p.  672. 

2  Brocklebank  k  Co.  v.  King's  Lynn  Steamship  Co.,  3  C.  P.  D.  365  ;  47  L.  J.  C.  P. 
321  ;  31  L.  T.  489  ;  Massey  v.  Allen,  12  Ch.  D.  807  ;  48  L.  J.  Ch.  692  ;  28  W.  R.  243. 

3  De  la  Grange  v.  McAndrew,  4  Q.  B.  D.  210  ;  48  L.  J.  Q.  B.  317  ;  27  W.  R.  413  ; 
Ex  parte  Isaacs,  10  Ch.  D.  1  ;  27  W.  R.  297  ;  39  L.  T.  520. 

4  Pisani  V.  Lawson,  5  Scott,  418  ;  6  Bing.  N.  C.  90. 

6  Sturla  V.  Freccia,  PoUni  v.  Gray,  11  Ch.  D.  741  ;  28  W.  R.  81  ;  40  L.  T.  861. 

402 


KEMITTING   ACTION   TO    COUNTY   COURT.  *  467 

master  at  chambers  otherwise  directs,  be  given  to  the  party  or  person 
requiring  the  security,  and  not  to  an  officer  of  the  Court. ^ 

If  a  married  woman  sue  by  her  next  friend  instead  of  hei  liusband,  and 
such  next  friend  is  a  person  of  no  means,  or  is  insolvent,  a  master  at 
chambers  will  stay  proceedings  till  security  for  costs  is  given.  But  in  the 
case  of  an  infant  it  seems  that  security  for  costs  will  never  be  required, 
even  though  the  next  friend  be  a  pauper.  Xor  in  the  case  of  a  married 
woman  who  has  a  separate  income  of  ^1500  a  year.^ 

*  Remitting  the  Action  to  the  County  Court.  *  468 

By  virtue  of  s.  10  of  the  County  Courts  Act,  1867  r^  — "It  shall  be 
lawful  for  any  person  against  whom  an  action  for  .  ,  ,  .  libel,  slander 
....  or  other  action  of  tort  may  be  brought  in  a  Superior  Court,  to  make 
an  affidavit  that  the  plaintiff  has  no  visible  means  of  paying  the  costs  of 
the  defendant  should  a  verdict  be  not  found  for  the  plaintiff;  and  there- 
upon a  judge  of  the  Court  in  which  the  action  is  brought  shall  have  power 
to  make  an  order  that  unless  the  plaintiff  shall,  within  a  time  to  be  therein 
mentioned,  give  fuU  security  for  the  defendant's  costs  to  the  satisfaction  of 
one  of  the  masters  of  the  said  Court,  or  satisfy  the  judge  that  he  has  a 
cause  of  action  fit  to  be  prosecuted  in  the  Superior  Court,  all  proceedings 
in  the  action  shall  be  stayed,  or  in  the  event  of  the  plaintiff  being  unable 
or  unwilling  to  give  such  security,  or  failing  to  satisfy  the  judge  as  afore- 
said, that  the  cause  be  remitted  for  trial  before  a  County  Court  to  be  therein 
named  ;  and  thereupon  the  plaintiff  shall  lodge  the  original  writ  and  the 
order  with  the  registrar  of  such  County  Court,  who  shall  appoint  a  day  for 
the  hearing  of  the  cause,  notice  whereof  shall  be  sent  by  post  or  otherwise 
by  the  registrar  to  both  parties  or  their  attorneys ;  and  the  County  Court 
so  named  shall  have  aU  the  same  powers  and  jurisdiction  with  respect  to 
the  cause  as  if  both  parties  had  agreed,  by  a  memorandum  signed  by  them, 
that  the  said  County  Court  should  have  power  to  try  the  said  action,  and 
the  same  had  been  commenced  by  plaint  in  the  said  County  Court ;  and 
the  costs  of  the  parties  in  respect  of  the  proceedings  subsequent  to  the 
order  of  the  judge  of  the  Superior  Court  shall  be  allowed  according  to 
the  scale  of  costs  in  use  in  the  County  Courts,  and  the  costs  of  the  proceed- 
ings in  the  Superior  Court  shall  be  allowed  according  to  the  scale  in  use 
in  such  latter  Court." 

It  is  expressly  enacted  by  the  Judicature  Act,  1873,  s.  67,  that  the  pro- 
visions of  this  section  shall  apply  "  to  all  actions  commenced  in  tlie  High 
Court  of  Justice  in  vjhich  any  relief  is  sought  which  can  he  given  in  a 
County  Courts     The  words  in  italics  have  been  much  discussed  in  Garnett 

1  Order  LV.  r.  3  ;  R.  S.  C.  April,  1880,  r.  41. 

2  Nod  V.  Noel,  13  Ch.  D.  510  ;  23  W.  E.  720  ;  42  L.  T.  352.       3  30  &  31  Vict.  c.  142. 

403 


*  469  PRACTICE  AND  EVIDENCE. 

*  469    V.  Bradley;^  *  and  the  other  decisions  as  to  costs;  and  were  held 

Avhen  taken  with  Order  LV.  r.  1,  to  hmit  the  various  sections  of 
the  County  Courts  Act,  18G7,  to  actions  which  could  be  commenced  in  the 
County  Court.  But  it  could  hardly,  I  think,  be  contended  that  these 
words  have  the  same  effect  on  s.  10,  and  limit  its  operation  to  actions  of 
tort  which  could  be  commenced  in  the  County  Court ;  though  that  is 
perhaps  the  strictly  logical  result  of  the  decisions  mentioned  above.  For 
Order  LV.  r.  1,  has  of  course  nothing  to  do  with  the  matter,  and  "libel" 
and  "slander"  are  expressly  mentioned  in  s.  10.  Any  how,  the  practice 
at  chambers  under  the  section  continues  the  same,  and  s.  10  is  always  con- 
sidered to  apply  to  all  actions  of  tort,  whether  they  can  or  cannot  be 
commenced  in  the  County  Court. 

The  application  can  be  made  at  any  stage  of  the  action  ;  but  only  by 
the  defendant.  If  an  order  be  made,  its  effect  is  practically  to  transform 
the  action  into  a  County  Court  cause.  ^ 

Statement  of  Claim. 

The  defendant,  on  his  memorandum  of  appearance,  must  state  whether 
he  does  or  does  not  require  a  statement  of  claim  to  be  delivered.  I  should 
advise  the  defendant  in  every  action  of  libel  or  slander  always  to  require 
a  statement  of  claim ;  as  it  is  clearly  to  his  interest  to  have  the  exact  words 
alleged  to  be  defamatory  set  out  on  the  record.  And  even  if  the  defendant 
expressly  says  that  he  does  not  require  a  statement  of  claim,  I  should 
advise  plaintiff  still  to  deliver  one,  in  spite  of  the  risk  of  costs  which  he 
may  incur  under  Order  XXI.  r.  Ic.  I  do  not  think  any  taxing-master 
would  ever  consider  the  delivery  of  a  statement  of  claim  in  an  action  of 
libel  or  slander  to  be  "  unnecessary  or  improper." 

The  plaintiff  may,  if  he  chooses,  deliver  his  statement  of  claim  with  the 

writ ;  but  this  is  not  often  done.     He  nuist  deliver  it  within  six  weeks 

after  the  defendant's  appearance,  unless  the  time  be  extended  by 

*  470    leave ;  ^   otherwise    *  the   defendant   will  apply  to  the  master  at 

chambers  to  dismiss  the  action  with  costs  for  want  of  prosecution. 
The  Judicature  Act  has  made  but  little  ditference  in  the  plaintiff's 
pleadings  in  an  action  of  libel  or  slander.  An  old  declaration,  if  cut  up 
into  paragraphs  in  obedience  to  Order  XIX.  r.  4,  would  pass  muster  as  a 
statement  of  claim  ;  and  would,  indeed,  be  a  more  satisfactory  document 
than  many  modern  pleadings.  All  decisions  since  1852  seem  still  to  apply, 
except  those  relating  to  variances,  which  are  rendered  somewhat  obsolete 

1  (C.  A.)  2  Ex.  D.  349 ;  46  L.  J.  Ex.  545  ;  25  W.  E.  653  ;  36  L.  T.  725  ;  (H.  L.) 
3  App.  Gas.  944  ;  48  L.  J.  Ex.  186  ;  26  W.  K.  698  ;  39  L.  T.  261  ;  Parsons  i;.  Tinling, 
2  C.  P.  D.  119  ;  46  L.  J.  C.  P.  230  ;  25  W.  R.  255  ;  35  L.  T.  851. 

2  As  to  the  further  conduct  of  the  action,  see  post,  p.  565.  ^  Order  XXI.  r.  1. 

404 


STATEMENT   OF    CLAIM.  *  470 

by  the  largely  increased  powers  of  amendment  given  to  our  judges,  and 
the  greater  readiness  with  which  such  powers  are  exercised. 

The  very  words  complained  of  must  be  set  out  by  the  plaintiff  in  his 
statement  of  claim,  "  in  order  that  the  Court  may  judge  whether  they  con- 
stitute a  ground  of  action,"  ^  and  also  because  "  the  defendant  is  entitled 
to  know  the  precise  charge  against  him,  and  cannot  shape  his  case  until  he 
knows."  ^  It  is  not  sufficient  to  give  the  substance  or  purport  of  the  libel 
or  slander  with  innuendoes.^  So  too  in  cases  of  slander  of  title  the  words 
must  be  set  out  verbatim}  Order  XIX.  r.  24,  does  not  apply;  for  the 
words  of  the  libel  are  most  material.^  The  defendant  may  be  interrogated 
as  to  the  exact  words  he  uttered  if  the  plaintiff  cannot  otherwise  discover 
them.®  If  the  words  are  in  a  foreign  language,  they  should  be  set  out 
verbatim  in  such  language.''  And  an  exact  translation  should  be  added. 
Take  care  not  to  translate  actionable  words  into  non-actionable,  as  was 
done  in  Ross  v.  Lawrence  (1651).^  It  was  formerly  necessary  to 
*  aver  expressly  in  the  case  of  foreign  words  that  those  present  '171 
understood  them.^  And  in  Amann  v.  Damm,^"  where  the  words 
were  spoken  in  German,  Williams,  J.,  appeared  to  think  that  such  an 
averment  was  still  necessary,  but  tlie  rest  of  the  Court  thought  otherwise, 
it  would  seem;  although  section  61  of  the  C.  L.  P.  Act,  1852,  was  not 
cited  to  the  Court.  It  may  be  safer,  however,  to  insert  a  short  allegation 
to  that  effect  in  the  statement  of  claim,  although  I  do  not  think  it  is  now 
essential."     The  fact  must  of  cour.se  still  be  proved  at  the  trial. ^"- 

If  the  slander  was  contained  in  a  question,  it  must  be  set  out  as  a  ques- 
tion, and  not  as  a  fact  affirmed.  So,  if  the  slander  consists  in  the  answer 
to  a  question,  and  the  answer  alone  is  unintelligible,  both  question  and 
answer  should  be  set  out  exactly  as  they  were  spoken.  ^^  go  if  the  words 
were  "  Woor  says  M'Pherson  is  bankrupt,"  tliey  must  be  so  set  out ;  if  the 

>  Per  Lord  Tenterden,  3  B.  &  Aid.  506. 

2  Per  Lord  Coleridge,  in  Harris  v.  Warre,  4  C.  P.  D.  123  ;  43  L.  J.  C.  P.  310  ;  27 
W.  R.  461  ;  40  L.  T.  429. 

8  Newton  v.  Stubbs,  3  Mod.  71  ;  Cooke  v.  Cox,  3  ]\I.  &  S.  110  ;  Wood  v.  Brown, 
6  Taunt.  169  ;  Wood  v.  Adam,  6  Bing.  481  ;  Wright  v.  Clements,  3  B.  &  Aid.  503  ; 
Saunders  v.  Bate,  1  H.  &  N.  402 ;  Solomon  v.  Lawson,  8  Q.  B.  823  ;  15  L.  J.  Q.  B. 
253  ;  10  Jur.  796. 

*  Giitsole  V.  Mathers,  1  M.  &  W.  495  ;  1  Tyrw.  &  Gr.  694  ;  5  Dowl.  69  ;  2  Gale,  64. 

5  Harris  v.  Warre,  supra. 

6  Atkinson  v.  Fosbrooke,  L.  R.  1  Q.  B.  628  ;  35  L.  J.  Q.  B.  182  ;  14  W.  R.  832  ; 
14  L.  T.  553. 

7  Zenobio  v.  Axtell,  6  T.  R.  162  ;  3  M.  &  S.  116.  And  see  R.  v.  Manas.seh  Gold- 
stein, 3  Bred,  k  B.  201 ;  7  Moore,  1  :  10  Price,  88  ;  R.  &  R.  C  C.  473. 

8  Sty.  263.  9  Jones  v.  Davers,  Cro.  Eliz.  496  :  Price  v.  Jenkinps,  Cro.  Eliz.  865. 
10  8  C.  B.  N.  S.  597 ;  29  L.  J.  C.  P.  313  ;  7  Jur.  N.  S.  47  ;  8  W.  R.  470. 

"  See  Precedent,  No.  30.  ^  Ante,  p.  110. 

"  See  Bromage  v.  Prosser,  4  B.  &  C.  247. 

405 


*  471  PRACTICE  AND   E\T:DENCE. 

declaration  alleged  that  the  defendant  had  said  "M'Pherson  is  bankrupt" 
merely,  the  variance  would  formerly  liave  been  fatal  ;^  but  now  such  a 
variance  would  be  amended,  on  payment  of  the  costs,  if  any,  thereby  occa- 
sioned.^ If  the  libel  consist  of  two  letters  Avritten  to  the  Times,  neither  of 
which  is  a  complete  libel  without  the  other,  both  must  be  set  out  verbatim.^ 
But  in  other  cases  it  is  not  necessary  to  set  out  the  whole  of  an  article  or 
review,  containing  libellous  passages ;  it  is  sufficient  to  set  out  the  libellous 
passages  onl}",  provided  that  nothing  be  omitted  which  qualifies  or  alters 
their  sense.  If,  however,  the  meaning  of  the  libellous  passages  taken  singly 
is  not  clear,  or  if  the  rest  of  the  article  would  in  any  substantial  degree 
vary  the  meaning  of  the  words  complained  of,  the  whole  must  be  set  out,* 

Where  detached  portions  of  a  book  or  article  are  thus  given,  it 
47-    should  appear  on  tlie  statement  of  *  claim  that  they  are  detached 

portions ;  they  shoidd  not  be  printed  as  though  they  ran  on  con- 
tinuously.^ 

It  must  be  alleged  that  the  defendant  "  spoke  and  published  "  or  "  wrote 
and  published  "  these  words,  and  it  should  be  stated  when  and  to  whom. 
It  is  essential  in  cases  of  libel  to  add  the  words  "  and  published,"  as  writ- 
ing a  libel  which  is  never  published  is  no  tort.  Still  it  is  not  absolutely 
necessary  to  use  the  very  word  "published;"  iu  Baldwin  v.  Elphinston,® 
the  phrase  "  printed  and  caused  to  be  printed  "  was  held  sufficient.  Fur- 
ther, it  must  always  be  alleged  that  the  words  were  spoken  or  written  "of 
and  concerning  the  plaintiff"."  Then  it  should  be  averred  that  the  defend- 
ant spoke  or  wrote  and  published  the  words  "  falsely  and  maliciously." 
This  is  a  time-honored  phrase  which  should  always  appear  in  every  state- 
ment of  claim  ;  it  would  be  foolish  to  idly  raise  a  point  of  law  by  omitting 
it.  But  in  my  opinion  its  omission  would  not  render  the  statement  of 
claim  demurrable.  For,  by  r.  28  of  Order  XIX.,  "neither  party  need 
in  any  pleading  allege  any  matter  of  fact  which  the  law  presumes  in  bis 
favor,  or  as  to  which  the  burden  of  proof  lies  upon  the  other  side,  unless 
the  same  has  first  been  specifically  denied."  As  long  ago  as  16.52,  Rolle, 
C.J.,  held  these  words  unnecessary  iu  a  declaration.''  In  1813,  Lord 
Ellenborough  held  the  absence  of  the  word  "falsely"  immaterial,  "unlaw- 
fully and  maliciously  "  being  present.*     So,  too,  under  the  old  practice  it 

1  M'Pherson  v.  Daniels,  10  B.  &  C,  at  p.  274  ;  Bell  v.  Byrne,  13  East,  55i  ;  Pearce 
V.  Eogers,  2  F.  &  F.  137. 

2  Smith  V.  Knoweldeii,  2  M.  &  Gr.  561. 

3  Solomon  v.  Lawson,  8  Q.  B.  823  ;  15  L.  J.  Q.  B.  253  ;  10  Jur.  796. 

4  Cartwriglit  v.  Wright,  5  B.  &  Aid.  615  ;  Buckingham  v.  Murray,  2  C.  &  P.  47; 
Rutherford  v.  Evans,  6  Bing.  451  ;  4  C.  &  P.  74  ;  Rainy  v.  Bravo,  L.  R.  4  P.  C.  287  ; 
20  W.  R.  873. 

5  Per  Lord  Ellenborough,  in  Tabart  v.  Tipper,  1  Camp.  353. 

6  2  W.  Bl.  1037.  ^  Anon.,  Style,  392. 
8  Rowe  V.  Roach,  1  M.  &  S.  309. 

406 


STATEMENT   OF    CLAIM.  *  472 

■was  decided  that  if  "  falsely  "  was  inserted,  "  maliciously  "  might  be  omit- 
ted.^ There  is,  however,  a  practical  convenience  in  alleging  malice  in  the 
statement  of  claim,  viz.,  if  the  defendant  pleads  privilege,  no  special  reply 
is  then  necessary,  the  formal  averment  in  the  statement  of  claim  takes  a 
new  meaning,  and  becomes  an  allegation  of  express  malice. 

But  the  part  of  the  statement  of  claim  which  requires  most  care  in  draft- 
ing is  the  innuendo.^  Where  the  words  are  clearly  actionable  on  the  face 
of  them,  no  innuendo  is  necessary,  though  even  here  one  is  fre- 
quently inserted.  But  whenever  the  words  are  actionable  *  only  4  i  6 
in  some  secondary  sense,  an  innuendo  is  essential  to  the  plaintiff's 
success.  So,  too,  if  it  is  not  clear  that  the  words  refer  to  the  plaintiff,  an 
innuendo  must  be  inserted,  "  meaning  thereby  the  plaintiff,"  &c.  ;  and  it 
■will  be  Avell,  though  not  essential,  to  state  facts  which  make  it  clear  that 
the  plaintiff  is  the  person  referred  to.^ 

Besides  the  innuendo,  it  was  formerly  expected  that  the  pleader  should 
insert  in  the  plaintiff's  declaration  a  variety  of  minute  averments,  tending 
to  increase  the  "certainty"  of  the  pleading,  as  it  was  then  imagined. 
Thus  it  was  necessary  that  there  should  be  a  coUquium,  an  averment  that 
the  defendant  was  speaking  of  the  plaintiff,  as  well  as  constant  innuendoes, 
and  other  allegations  properly  connecting  tliese  innuendoes  with  the  intro- 
ductory averments  which  described  the  locality,  the  relationship  between 
the  various  persons  mentioned,  and  all  the  surrounding  circumstances 
necessary  to  fully  understand  the  defendant's  words.  These  matters  could 
not  be  proved  at  the  trial,  unless  they  were  set  out  on  the  record.*  And 
if  some  of  them  were  proved  at  the  trial  and  not  others,  many  legal  refine- 
ments arose  as  to  how  far  such  allegations  were  or  were  not  divisible,  with 
which  I  need  not  trouble  my  readers.  For  now,  by  s.  61  of  the  C.  L.  P. 
Act,  1852,  the  colloqidam  and  all  other  such  frivolous  averments  are  ren- 
dered imnecessary  ;  and  r.  4  of  Order  XIX.  requires  that  only  material 
facts  should  be  stated  in  the  pleadings,  and  these  "  as  concisely  as  may  be." 
The  only  case  in  which  an  introductory  averment  is  now  essential  to  the 
plaintiff's  success  is  where  words  are  actionable  only  by  reason  of  being 
spoken  of  the  plaintiff  in  the  way  of  his  office,  profession,  or  trade.  Here 
there  must  always  be  an  averment  that  the  plaintiff  actually  held  the  office 
or  carried  on  the  profession  or  trade  at  the  time  when  the  words  were 
spoken.^  And  there  should  also  be  an  averment  that  the  words  were 
spoken  of  the  plaintiff  with  reference  to  such  office,  profession,  or  trade. 
But  if  the  former  allegation  appear,  the  omission  of  the  latter  is  not  fatal, 

1  Mercer  v.  Sparks  (1586),  Owen,  51  ;  Xoy,  35  ;  Anon.  (1596),  Moo.  459.  See  per 
Brett,  L.  J.,  in  Clark  v.  Molyneux,  3  Q.  B.  D.  247,  ante,  p.  267. 

2  As  to  its  office,  see  ante,  pp.  100-117.  ^  See  ante,  p.  128. 
*  See  ante,  pp.  118-120,  128. 

6  Gallwey  v.  Marshall,  9  Ex.  300  ;  23  L.  J.  Ex.  78  ;  2  C.  L.  R.  399. 

407 


*473  PRACTICE   AND   EVIDENCE. 

as  the  jiulge  will  in  a  proper  case  amend  the  statement  of  claim  by  insert- 
ing an  allegation  to  that  effect.^  But  it  is  often  desirable  in  other  cases  to 
plead  some  introductory  averment  which,  though  not  strictly  neces- 
*  474  sary,  *  will  help  to  make  the  case  clear,  by  explaining  what  is  to 
follow.'^ 

Also  where  the  words  were  spoken  ironically,  it  must  be  averred  that 
they  were  so  spoken,  or  the  statement  of  claim  would  be  demurrable.^ 

Always  aver,  wherever  it  is  not  palpably  absurd  so  to  do,  that  the 
words  were  spoken  of  the  plaintiff  in  the  way  of  his  trade.  This  allegation 
won  the  demurrer  for  the  plaintiff  in  Foulger  v.  Newcomb  ;  *  and  had  it 
been  present  it  would  probably  have  saved  Miller  v.  David.^  Yet  it  does 
not  always  avail.^ 

Lastly,  insert  a  claim  fur  damages.  Where  the  words  are  clearly  action- 
able per  se,  it  is  of  course  unnecessary  to  claim  general  damages,  though  it 
is  sometimes  done ;  but  any  special  damage  that  may  have  accrued  must 
in  every  case  be  specifically  stated  and  with  sufficient  particularity  to 
enable  the  defendant  to  know  precisely  Avhat  case  he  has  to  meet.  If  the 
special  damage  alleged  be  loss  of  custom,  the  customers'  names  must  be 
given  ;  so  if  loss  of  marriage  be  alleged,  the  gentleman  or  lady  must  be 
named.'' 

If  a  plaintiff  does  not  deliver  a  statement  of  claim  within  the  time 
limited  for  so  doing,  he  will  be  liable  to  have  the  action  dismissed  with 
costs,  under  Order  XXIX.  r.  1.  But  the  defendant  will  not  be  allowed  to 
take  advantage  of  a  mere  slip.^ 

Every  pleading  which  contains  ten  or  more  folios  of  seventy-two  words 
must  be  printed.® 

Vemee. 

The  plaintiff  must  now  select  the  place  of  trial,  and  name  it  at  the 
foot  of  his  Statement  of  Claim.  If  he  name  no  place,  it  will  be 
tried  in  Middlesex,  unless  an  order  be  made  to  the  contrary.^"  The 
plaintiff's  choice  will  be  determined  as  a  rule  by  questions  of  economy  and 
convenience ;  he  will  fix  the  trial  in  the  place  that  best  suits  himsexx"  and 

1  Kamsdale  v.  Greenacre,  1  F.  &  F.  CI. 

2  See  Precedents  of  Pleading,  Nos.  3,  7,  and  32,  App.  A. 
8  Jnte,  pp.  113,  116. 

*  L.  R.  2  Ex.  327  ;  36  L.  J.  Ex.  169  ;  15  W.  R.  1181  ;  16  L.  T.  595. 
6  L.  R.  9  C.  P.  118  ;  43  L.  J.  C.  P.  84  ;  22  W.  R.  332  ;  30  L.  T.  58. 
6  See  Sheahan  v.  Ahearne,  Ir.  R.  9  C.  L.  412. 

'  See  Precedents,  Nos.  27,  28,  36,  App.  A.  As  to  what  constitutes  special  damage, 
see  ante,  pp.  309-313. 

8  Michel  V.  Wilson,  25  W.  R.  380  ;  Canadian  Oilworks  Corporation  v.  Hay,  38 
L.  T.  549  ;  Weekly  Notes,  1878,  p.  107. 

9  Order  XIX.  r.  5  ;  R.  S.  C.  June,  1376,  r.  9.  ^'^  See  post,  p.  528. 

408 


DEMURRER.  *  47-1 

his  witnesses.     But  if  the  action  Ije  against  a  newspaper  of  wide 
circulation  in  *  the  district,  or  if  the  defendant  in  any  other  way     *  475 
is  popular  or  powerful  in  liis  own  neighboriiood,  the  plaintiff  should 
decide  on  Middlesex,  where  he  is  sure  of  an  educated  and  impartial  jury. 

Instructions  for  Statement  of  Defence. 

On  receiving  the  statement  of  claim,  the  defendant  should  carefully  con- 
sider his  position,  and  decide  on  his  course  of  action.  Often  it  would  be 
well  for  him  to  apologize  at  once,  and  pay  money  into  Court.  In  some 
few  cases  he  should  declare  war  to  the  knife,  and  justify.  But  it  is  no  use 
for  him  to  send  his  counsel  merely  a  copy  of  the  statement  of  claim  with 
instructions  consisting  solely  of  the  words  "  Counsel  will  please  prepare 
the  necessary  pleas."  The  statement  of  defence  in  an  action  of  libel  or 
slander  is  a  most  important  document ;  ^  and  before  settling  it,  counsel 
should  be  put  in  possession  of  all  tlie  facts.  He  should  be  asked  to  advise 
whether  the  occasion  was  privileged  ;  and  if  there  is  any  thought  of  a  jus- 
tffication,  the  evidence  by  which  it  is  proposed  to  support  that  plea  should 
he  submitted  to  counsel  in  full  detail,  and  his  opinion  taken  as  to  its  suffi- 
ciency. If  no  definite  instructions  be  given  to  counsel,  he  will  content 
himself  with  merely  denying  every  material  allegation  in  the  plaintiff's 
statement  of  claim. 

Demurrer. 

The  defendant's  counsel,  on  receiving  the  statement  of  claim  should 
first  consider  if  it  is  demurrable.  But  if  it  is,  it  by  no  means  follows  that 
in  every  such  case  he  should  demur.  If  the  words  are  not  actionable  per 
se,  and  no  special  damage  is  alleged,  a  demurrer  is  obviously  the  shortest 
way  to  put  an  end  to  the  action,  and  should  of  course  be  resorted  to.  So, 
if  the  words  set  out  are  not  defamatory  in  their  ordinary  signification,  and 
there  is  no  innuendo,  or  if  the  innuendo  alleges  a  meaning  which  it  is  clear 
that  the  words  will  not  hear.  But  even  in  the  last  case  the  defendant 
generally  should  not  demur,  unless  the  law  is  clearly  in  his  favor,  and  the 
facts  are  not.  Counsel  should  always  bear  in  mind  the  good  advice  which 
my  Lord  Coke  deduces  as  a  moral  from  "  the  first  cause  that  he  ever 
moved  in  the  King's  Bench  : "  — 

"  When  the  matter  in  fact  will  clearly  serve  for  your  client, 
*  although  your  opinion  is  that  the  plaintiff  has  no  cause  of  action.    *  47G 
yet  take  heed  that  you  do  not  liazard  the  matter  upon  a  demurrer ; 
in  which,  upon  the  pleading,  and  otherwise,  more  perhaps  will  arise  tlian 
you  thought  of;  but  first  take  advantage  of  the  matters  of  fact,  and  leave 
matters  in  law,  which  always  arise  upon  the  matters  in  fact,  ad  ultinuim, 

1  See  Precedents,  Nos.  25,  26. 

409 


*  47G  PRACTICE   AND   EVIDEXCE. 

and  never  at  first  demur  in  law ;  when  after  trial  of  the  matters  in  fact,  the 
matters  in  law  (as  in  this  case  it  was)  will  be  saved  to  you."  ^ 

This  advice,  though  nearly  three  hundred  years  old,  is  as  sound  now  as 
it  was  in  the  days  of  Queen  Elizabeth.  In  fact,  owing  to  the  liberal  powers 
of  amendment  given  by  the  C.  L.  P.  Acts,  and  by  the  Judicature  Acts,  its 
efficacy  has  increased  rather  than  diminished.  The  result  of  most  demur- 
rers is  that  the  plaintiff  obtains  leave,  on  paying  the  costs  of  the  demurrer, 
to  amend  his  statement  of  claim.  And  it  is  generally  better  for  the  defena- 
ant  that  the  plaintiff  should  be  driven  to  such  amendment  at  the  trial  in 
the  presence  of  the  jury.  If,  theref9re,  the  facts  are  likely  to  prove  in  the 
defendant's  favor,  he  should  not  as  a  rule  demur,  unless  it  is  clear  that  the 
statement  of  claim  is  insufficient,  and  that  no  amendment  which  the  plain- 
tiff can  truthfully  make  will  cure  the  defect.  But  if,  at  the  trial  you  will 
be  compelled  to  admit  that  your  client  did  speak  the  words  complained  of, 
that  they  are  false,  and  that  the  occasion  was  not  privileged,  then  by  all 
means  demur,  and  take  advantage  of  any  point  of  law  you  can. 

What  I  have  said  above  applies  to  all  ordinary  cases  of  defamation, 
where  the  law  is  clear,  and  the  only  difficulty  is  to  apply  the  rule  of  law 
to  the  particular  subject  in  question.  But  where  the  matter  is  one  of  first 
impression,  or  where  in  any  other  way  the  law  on  the  point  is  not  clear, 
as  in  the  Western  Counties  Manure  Co.  v.  Lawes  Chemical  Manure  Co.,* 
there  it  is  clearly  desirable  to  demur  and  settle  the  point  of  law,  before 
incurring  the  expense  of  a  trial  at  ISTisi  Prius.  A  summons  should  be 
taken  out  for  leave  to  plead  over  should  the  demurrer  be  overruled,  and 
that  in  the  meantime  all  proceedings  be  stayed. 

Clients  are  sometimes  afraid  that,  by  not  demurring,  counsel  throw  away 

for  ever  one  chance  of  success,  that  the  objection,  if  not  taken  by 
*  477    demurrer,  cannot  be  taken  afterwards.     But  *  this  is  not  so.     ISTo 

doubt,  slight  defects,  such  as  slips  of  the  pen,  careless  omissions 
through  inartificial  pleading,  &c.,  may  sometimes  be  aided  by  pleading 
over ;  and  may  still  more  often  be  cured  by  verdict.  But  it  is  never  worth 
while  in  these  days  to  demur  on  the  ground  of  some  merely  formal  defect. 
But  all  matters  of  substance,  as  my  Lord  Coke  says,  "  will  be  saved  to 
you."  "  If  the  defendant  wants  to  avail  himself  of  '  his  points  of  law'  in 
a  summary  way,  he  must  demur ;  but  if  he  does  not  demur,  he  does  not 
waive  the  objection,  and  may  say  at  the  trial  that  the  claim  is  bad  on  the 
face  of  it."  ^  [But  note,  that  there  would  be  a  difficulty  in  relying  upon 
this  rather  startling  decision  in  one  of  the  .Courts  of  Common  Law ;  be- 

1  The  Lord  Cromwell's  Case  (1581),  4  Rep.  14. 

2  L.  R.  9  Ex.  218  ;  43  L.  J.  Ex.  171  ;  23  W.  R.  5. 

8  Per  Lindlej',  J.,  in  Stokes  v.  Grant,  4  C.  P.  D.  28  ;  27  W.  R.  397  ;  40  L.  T.  36. 
And,  further,  as  to  the  effect  of  a  demurrer,  see  Johnasson  v.  Bonhote,  2  Ch.  D.  298  ; 
45  L.  J.  Ch.  651  ;  24  W.  R.  619  ;  34  L.  T.  745. 
•ilO 


demueher.  *  477 

cause  the  notion  of  setting  up  the  Statute  of  Frauds  by  way  of  demurrer 
is  abhorrent  to  every  principle  of  Common  Law  pleading,  whether  before 
or  since  tiie  Judicature  Act.^]  In  Equity  it  was  formerly  the  practice  to 
allow  a  successful  defendant  only  the  costs  of  a  demurrer,  if  he  went  to 
trial  when  he  might  clearly  have  demurred,  on  the  ground  that  it  is  the 
duty  of  a  defendant  to  win  his  case  in  the  manner  least  expensive  to  his 
opponent.^     But  this  practice  now  is  in  disuse.^ 

If  there  has  to  be  a  demurrer,  it  is  often  good  policy  not  to  demur  your- 
self, but  to  plead  in  such  a  way  as  to  compel  your  opponent  to  demur. 
Then,  on  the  argument  of  his  demurrer  to  your  plea,  it  is  open  to  you  to 
object  to  his  statement  of  claim.  The  Court  will  sometimes  of  their  own 
motion  call  on  the  demurring  party  to  defend  his  own  previous  pleading.* 

Part  of  a  statement  of  claim  may  be  demurred  to,  and  the  rest  pleaded 
to,  without  leave,  provided  such  part  be  distinct  and  severable  from 
the  rest,  and  amounts  to  a  separate  cause  of  action ;  *  *  but  a  defend-  *  478 
ant  cannot,  without  leave,  plead  and  demur  to  the  same  part  of  the 
same  statement  of  claim.  He  should  always  apply  for  leave  both  to  plead 
and  demur  whenever  the  statement  of  claim  appears  to  be  untrue  in  point  of 
ftict  as  well  as  bad  in  law.®  If  he  does  not  apply  for  such  leave,  and  his 
demurrer  is  overruled,  he  will  have  to  apply  to  the  Court  for  leave  to  plead 
under  Order  XXVIII.  r.  12,  which  will,  however,  be  granted  to  him  almost 
as  a  matter  of  course  if  he  can  show  any  merits.'  The  defendant  must  state 
some  ground  in  law  for  his  demurrer ;  but  he  will  not  on  the  argument  be 
limited  to  the  ground  or  grounds  so  stated.*  It  is  sufficient  apparently  to 
allege  that  the  statement  of  claim  discloses  no  cause  of  action.^  It  is  as 
well,  after  enumerating  the  chief  grounds,  to  add  a  general  clause,  "  and 
on  other  grounds  sufficient  in  law  to  sustain  this  demurrer,"  as  was  done 
in  Dawkins  v.  Lord  Penrhyn.^"  The  plaintifi"  cannot  amend  pending  the 
demurrer,  without  leave ;  ^^  and,  if  convinced  that  his  statement  of  claim 
cannot  be  supported  as  it  stands,  he  should  apply  for  such  leave  as  soon 
as  the  demurrer  is  called  on,  if  not  previously.     For  if  he  takes  his  chance 

1  See  Catling  v.  King,  5  Ch.  D.  660  ;  46  L.  J.  Ch.  384  ;  25  W.  R.  550  ;  36  L.  T. 
526  ;  Dawkins  v.  Lord  Penrhyn,  4  App.  Cas.  51. 

2  Godfrey  v.  Tucker,  3  N.  R.  20  ;  Webb  v.  England,  29  Beav.  44. 

8  Bush  V.  Trowbridge  Waterworks  Co.,  L.  R.  10  Ch.  459  ;  23  W.  R.  641  ;  33  L.  T. 
137  ;  Pearce  v.  Watts,  L.  R.  20  Eq.  492  ;  44  L.  J.  Ch.  492  ;  23  W.  R.  771. 

4  Clay  V.  Roberts,  11  W.  R.  649  ;  9  Jur.  N.  S.  580  ;  8  L.  T.  397. 

6  Order  XXVIII.  r.  1  ;  Eaton  v.  Johns,  1  Dowl.  N.  S.  602,  608. 

6  See  Order  XXVIII.  r.  5. 

7  Bell  V.  Wilkinson  and  another  (C.  A.),  26  ^V.  R.  275  ;  Weekly  Notes,  1878,  p.  3. 

8  Order  XXVlIIt  r.  2.  »  Per  Lindley,  J.,  Weekly  Notes,  1876,  p.  37. 

10  C.  A.,   6  Ch.   D.  318  ;  26  W.  R.  6  ;  37  L,  T.  80  ;  (H.  L.)  4  App.  Cas.  51  ;  48 
L.  J.  Ch.  304  ;  27  W.  R.  173  ;  39  L.  T.  583. 
u  Order  XXVIII.  r.  7. 

411 


*  478  PEACTICE   AND   EVIDENCE. 

of  succeeding  on  the  argument,  the  Court  will  then  he  indisposed  to  allow 
him  to  amend.  On  the  other  hand,  if  no  ground  of  demurrer  be  stated  by 
the  defendant,  or  only  a  frivolous  one,  the  plaintiff  may  apply  to  a  mast'.-r 
at  chambers  to  set  aside  such  demurrer  with  costs.^ 

Each  party  must  draw  up  his  points  for  argument,  and  deliver  four 
copies  thereof  at  the  proper  office  for  the  use  of  the  judges.  They  are  also 
by  courtesy  usually  exchanged  between  the  parties.  The  demurring  party 
must  also  make  up  the  demurrer  book  on  plain  paper,  and  deliver  four 
copies  at  the  proper  office  for  the  use  of  the  judges,  four  clear  days  before 
the  day  appointed  for  argument.  The  demurring  party  ought  also  to  enter 
the  demurrer  for  argument ;  but,  if  he  does  not  do  so,  the  party  demurred 
to  imist ;  as  if  the  demurrer  be  not  entered  by  somebody  within  ten 

*  479    days  after  delivery,  it  will  be  *  deemed  to  have  been  allowed  with 

costs.^     Either  party  on  entering  it  must  give  notice  thereof  to  the 
other.' 

Often,  instead  of  demurring,  the  defendant  prefers  to  take  out  a  sum- 
mons at  chambers  to  strike  out  or  amend  certain  portions  of  the  statement 
of  claim.'*     Eut  the  more  usual  application  at  this  stage  is  for  particulars. 

Particulars. 

The  defendant's  counsel  should  next  consider  whether  the  statement  of 
claim  is  sufficiently  definite.  Before  the  Judicature  Act  particulars  were 
constantly  ordered  of  the  places  where,  the  times  when,  and  the  persons  to 
whom  the  alleged  slanders  were  uttered,  (a)  The  legislature  probably 
intended  that  there  should  be  no  particulars  under  the  Judicature  Act; 
and  an  attempt  was  at  first  made  to  carry  out  this  presumed  intention.^ 
But  it  was  soon  found  necessary  to  revive  the  former  practice,  and  an 
order  for  such  particulars  as  above  is  frequently  made,  where  the  details 
are  not  set  out  in  the  statement  of  claim.  But  particulars  of  the  names  of 
the  persons  passing  in  the  street  at  the  time  the  alleged  slander  was  uttered 
will  not  be  ordered.®  So,  too,  whenever  any  special  damage  is  claimed, 
but  not  with  sufficient  explicitness,  particulars  will  be  ordered  of  the 
alleged  damage,  setting  out  the  names  of  the  customers  who  had  ceased 
to  deal  with  the  plaintiff  in  consequence  of  defendant's  words.     This  is  a 

1  Order  XXVIII.  r.  2.  ^  Order  XXVIII.  rr.  6,  13. 

8  See  Kestell  and  wife  v.  Steward,  Weekly  Notes,  1875,  p.  231  ;  1  Charley,  87  ; 
Bitt.  46  ;  20  Sol.  J.  99  ;  60  L.  T.  Notes,  87. 

*  See  further  as  to  the  event  of  the  demurrer,  Order  XXVIII.  rr.  8-12. 

5  Order  XXVII.  r.  1,  post,  p.  499. 

6  Per  Denman,  J.,  in  Wingard  v.  Cox,  "Weekly  Notes,  1876,  p.  106  ;  Bitt.  144  ;  20 
Sol.  J.  341  ;  60  L.  T.  Notes,  304. 

(a)  Clark  V.  Munsell,  6  Met.  373  ;  Com-     Wharton,    Crim.    PI.   &  Ev.  §§  157,  702 
monwealth  v.  Snelling,  15  Pick.  321.    See     (8th  ed.). 

412 


STATEINIENT    OF   DEFENCE.  *  479 

very  useful  order ;  as,  if  plaintiff  cannot  give  the  names,  lie  will  be  com- 
pelled to  strike  out  the  allegation  of  special  damage  from  his  statement  of 
claim.  1  Particulars  of  general  damage  will,  of  course,  never  be  ordered; 
as  such  darnage  exists  rather  in  contemplation  of  law  than  in  reality. 

The  summons  for  particulars  should  always  ask  for  a  stay.^  It  wiU  then 
be  a  stay  from  the  time  it  is  attendable  till  the  particulars  are  delivered, 
unless  the  master  otherwise  order. 

*  Statement  of  Defence.  *  480 

Formerly,  by  one  short  and  convenient  plea,  "  Xot  Guilty,"  the 
defendant  denied  the  publication  of  the  defamatory  matter,  denied  its 
publication  in  the  defamatory  sense  imputed,  or  in  any  defamatory  action- 
able sense  which  the  words  themselves  imported,  asserted  tliat  the  occasion 
was  privileged,  and  also  denied  tliat  the  words  were  spoken  of  the  plaintiff 
in  the  way  of  his  profession  or  trade,  whenever  they  were  alleged  to  have 
been  so  spoken.  But  now  this  compendious  mode  of  pleading  is  abolished. 
"  iS'ot  Guilty  "  can  no  longer  be  pleaded  ;  though  "  Not  Guilty  by  statute  " 
may.^  It  is  necessary  now  to  deal  specifically  with  every  fact  of  which 
the  defendant  does  not  admit  the  truth.  It  will  be  necessary,  therefore,  to 
consider  the  following  several  pleas  :  — 

1.  Denial  of  the  publication. 

2.  Traverse  of  the  innuendo. 

3.  Traverse  of  the  plaintiff's  special  character, 

4.  Denial  that  the  words  were  spoken  with  reference  thereto. 

5.  Denial  that  the  words  were  spoken  of  the  plaintiff. 

6.  Traverse  of  the  damage. 

7.  No  libel. 

8.  Privilege. 

9.  Justification. 

10.  Apology. 

11.  Accord  and  satisfaction. 

12.  Statute  of  Limitations. 

13.  Previous  acticm. 

14.  Other  defences. 

15.  Payment  into  Court. 

16.  The  defendant  may  also  set  up  a  counterclaim. 

All  these  defences,  or  any  number  of  them,  may  be  pleaded  together  in 
the  same  action  without  leave  ;  although  they  are  obviously  inconsistent,  (a) 

1  See  Precedents  of  Pleading,  App.  A.,  Nos.  27,  28. 

2  See  form,  p.  608.  »  Order  XIX.  rr.  20,  16. 

{a)  Inconsistent  pleas  may  be  pleaded  eral  issue  and  a  justification.  Horton  v. 
anywhere  in  this  country,  such  as  the  gen-     Banner,  6  Bush,  596  ;  Farnan  v.  Childs, 

413 


*  480  PEACTICE   AND   EVIDENCE. 

A  defendant  may  "  raise  by  his  statement  of  defence  "without  leave,  as 
many  distinct  and  separate,  and  therefore  inconsistent,  defences  as  he  may 
think  proper,  subject  only  to  the  provision  contained  in  rule  1,  Order 
XXVII.,"  as  to  striking  out  embarrassing  matter.^ 

*  481         *  Thus,  in  Restell  and  wife  v.  Steward,^  Quain,  J.,  held  that  a  de- 

nial of  the  publication  and  a  justification  could  be  pleaded  together. 
In  Stainbank  v.  Beckett,  Bart.,^  the  defendant  pleaded  that  the  alleged 
libel  did  not  relate  to  the  plaintiff,  that  it  was  a  fair  comment  upon  a  mat- 
ter of  public  interest,  and  also  tliat  it  was  true  in  fact.  This  was  obviously 
most  inconsistent,  but  the  Court  of  Appeal  held  that  it  was  not  embarrass- 
ing, and  merely  ordered  particulars  of  the  justification.* 

If  there  is  some  defect  or  absurdity  in  your  adversary's  pleading,  and 
yet  you  decide  neither  to  demur  nor  to  apply  for  an  amendment  under  Or- 
der XXVII.  r.  1,  then  be  careful  in  pleading  over  not  to  aid  the  defect  in 
any  way.  The  less  said  about  that  part  of  the  pleading  the  better ;  do  not 
admit  it ;  if  need  be,  traverse  it  in  so  many  words ;  but  after  such  denial, 
avoid  the  whole  topic,  if  possible;  leaving  plaintiff's  counsel  to  explain  it 
to  the  judge  at  the  trial,'  if  he  can. 

The  defendant  cannot  bring  in  a  third  party  under  Order  XVI.  rr. 
17-21 ;  because  there  is  no  contribution  between  tort-feasors.^ 

The  defendant  may  deliver  interrogatories  with  his  Statement  of  De- 
fence.^ 

Traverses. 

It  was  intended  by  the  framers  of  the  Judicature  Act,  that  each  party  in 
his  pleading  should  frankly  admit  every  statement  of  fact  which  he  does 
not  intend  to  seriously  dispute  at  the  trial.  But  this  intention  has  not 
been  carried  out.  Counsel  do  not  make  admissions  unless  they  are  ex- 
pressly instructed  to  do  so,  which  they  very  seldom  are.     Xo  doubt  some- 

'  Per  Thesiger,  L.  J.,  in  Berdan  v.  Greenwood,  3  Ex.  D.  255  ;  47  L.  J.  Ex.  628  ; 
26  W.  R.  902  ;  39  L.  T.  223. 

2  Weekly  Notes,  1875,  pp.  231,  232  ;  1  Charley,  87  ;  Bitt.  46  ;  20  Sol.  J.  99  ;  60 
L.  T.  Notes,  87. 

3  Weekly  Notes,  1879,  p.  203. 

*  See  also  Hawkesley  v.  Bradshaw  (C.  A. ),  5  Q.  B.  D.  302  ;  49  L.  J.  Q.  B.  333 ;  28 
W.  R.  557  ;  42  L.  T.  285 ;  post,  p.  492. 

5  HorwelU'.  London  General  Omnibus  Co.,  2  Ex.  D.  365  ;  46  L.  J.  Ex.  700  ;  25  W. 
R.  610  ;  36  L.  T.  637.  As  to  pleading  a  defence  which  has  arisen  since  action  brought, 
see  Order  XX. 

6  See  post,  p.  500, 

66  111.  544  ;  Summer  v.  Chipraan,  65  N.  67  ;  Miller  v.  Graham,  1  Brev.  283.     But 

Car.    623  ;  Spooner  v.   Keeler,    51  N.  Y.  inconsistent  facts  should  not  be  pleaded  in 

527  ;  Peters  v.  Ulmer,  74  Penn.  St.  402  ;  the  same  plea.     Sayles  v.  Wooden,  6  How. 

Barru.  Hack,  46  Iowa,  308  ;  Kelly  i^.  Craig,  Pr.  84.     See  Payson  v.  Maconiber,   3  Al- 

9  Humph.  215  ;  Cheadle  v.  Buell,  6  Ohio,  len,  69. 

414 


TRAVERSES.  *  481 

times  in  cases  of  slander  it  may  be  desirable  to  deny  uttering  tbe  words,  so 
as  to  compel  the  plaintiff  to  call  as  his  witness  the  person  to  whom  the  de- 
fendant spoke,  whom  then  the  defendant  cross-examines  to  show 
privilege.  But  as  a  rule  in  cases  of  libel  the  *  defendant  should  ad-  *  482 
mit  the  publication  whenever  it  can  be  proved  against  him  without 
trouble.  All  the  rest  of  the  statement  of  claim,  even  immaterial  averments, 
should  be  traversed ;  as  if  not  denied  they  will  be  taken  as  admitted.^  The 
most  convenient  form  of  denial  is  this  :  — 

"  The  defendant  denies  the  allegations  contained  in  paragraph  3  of  the 
plaintiff's  Statement  of  Claim,  and  each  and  every  of  them." 

This  is  the  form  proper  to  a  denial  of  matters  within  the  defendant's 
knowledge  ;  as  to  matters  not  within  his  knowledge,  it  will  be  more  correct 
to  say  :  — 

"  The  defendant  does  not  admit  any  of  the  allegations  contained  in  para- 
graph 8  of  the  Statement  of  Claim." 

But  it  is  contrary  to  the  spirit  of  Order  XIX.  rr.  2D  &  22  to  deal  too 
largely  in  these  general  traverses.  It  also  looks  weak,  as  though  the  de- 
fendant had  no  real  defence.  It  wiU  be  well  therefore  to  insert  some  more 
special  denials  :  — 

1.  "  The  defendant  denies  that  he  spoke  or  published  of  the  plaintiff  the 
words  set  out  in  paragraph  3  of  the  Statement  of  Claim."  The  words 
"  either  falsely  or  maliciously "  must  not  be  added.  For  the  plea,  as  it 
stands  without  them,  is  a  denial  of  the  publication  in  fact :  if  the  plaintiff 
prove  publication,  the  law  will  presume  it  to  have  been  false  and  malicious, 
until  the  defendant  proves  either  privilege  or  a  justification ;  and  both  priv- 
ilege and  justification  must  be  specially  pleaded,  not  merely  suggested  by 
the  addition  of  four  words  to  a  plea  which  really  raises  quite  a  different  de- 
fence. 

2.  "  The  defendant  denies  that  he  spoke  or  published  of  the  plaintiff  the 
words  set  out  in  paragraph  3  of  the  Statement  of  Claim  with  the  meaning 
as  therein  alleged."  This  is  a  traverse  of  the  innuendo.  The  innuendo,  if 
there  be  one,  should  always  be  traversed. 

3.  "  The  plaintiff  did  not,  at  the  date  of  the  publication,  if  any,  of  the 
said  words,  carry  on  the  business  of  a  butcher  as  alleged  in  paragraph  1  of 
the  plaintiff's  Statement  of  Claim  ;  "  or  "  The  plaintiff  was  not  at  the  date, 
&c.,  such  vicar  as  alleged,"  or  "  was  not  at  such  date  a  partner  in  the  firm 
of  Mears  and  Stainbank  as  alleged."  This  is  a  traverse  of  the  special 
character  in  which  the  plaintiff  sues;  and  must  always  be  specially 
pleaded.^ 

*  4.  "  The  defendant  denies  that  he  spoke  or  published  the  said  *  483 
words,  if  at  all,  with  reference  to  the  plaintiff  in  the  way  of  his  said 

1  Order  XIX.  r.  17. 

2  Rules  of  Trinity  Term,  1853,  r.  16  ;  Jud.  Act.  Order  XIX.  r.  11. 

415 


*  483  PKACTICE  AND   EVIDENCE. 

business  or  trade  of  a  'bntcher  [office  or  profession  of ]."     This  plea 

did  not  require  to  be  pleaded  specially  under  the  old  system  ;  and  it  would, 
therefore,  I  presume  be  now  deemed  to  be  included  in  a  general  denial  of 
the  allegations  in  the  paragraph.     But  it  is  better  to  set  it  out  plainly. 

5.  "  The  defendant  denies  that  the  said  words  in  any  way  referred  to  the 
plaintiff.     They  were  not  so  understood  by  those  who  heard  them  uttered."  ^ 

6.  Deny  all  the  allegations  as  to  damage.  It  was  formerly  the  rule  that 
the  defendant  could  not  plead  to  damage.  But  he  is  now  bound  at  all 
events  to  deny  the  allegations  contained  in  that  paragraph  ;  ^  he  often  goes 
further,  and  states  that  the  damage  alleged  to  have  been  suffered  Avas  not 
caused  by  defendant's  words,  but  by  a  repetition  of  them,  or  is  otherwise 
too  remote.^ 

7.  Bond  fide    Comment.     No  Libel. 

For  a  plea  of  bond  fide  comment  on  a  matter  of  public  interest.* 
It  was  decided  in  Ireland  before  the  Judicature  Act  that  a  plea  "  that 
the  matter  contained  in  the  said  paragraph  is  not  a  libel "  was  a  good  plea ; 
for  it  raised  a  question  which  was  now  for  the  jury,  not  the  judge.^  And 
since  tlien  such  a  plea  has  been  freely  used  in  Ireland.^  But  such  pleading 
is  not  in  accordance  with  our  practice.  Perhaps  in  England  the  following 
plea  would  be  allowed  :  —  "  The  defendant  denies  that  he  wrote  or  pub- 
lished the  said  words  of  the  plaintiff  with  the  meaning  alleged  in  paragraph 
3  of  the  plaintiff's  Statement  of  Claim,  or  in  any  other  defamatory  sense. 
The  said  words  without  the  alleged  meaning  are  no  libel."  But  a  simple 
plea  that  "  the  said  words  are  not  defamatory,"  would  certainly  be  regarded 
as  an  informal  demurrer. 
*  ^g^  *  8.  Privilege. 

It  was  decided  in  the  Exchequer  Division  in  a  case  not  reported,''  that 
since  the  Judicature  Act  privilege  must  be  specially  pleaded,  and  also  that 
the  facts  and  circumstances  must  be  stated  showing  why  and  how  the  occa- 
sion is  privileged.  This  is  clearly  in  accordance  with  Order  XIX.  r.  18. 
There  is  a  similar  decision  in  Ireland.*  Many  such  pleas  may  be  sug- 
gested :  — 

1  See  Precedent  of  Plecading,  No.  5,  para.  3. 

2  Order  XIX.  r.  17.  ^  See  Precedent,  No.  34,  para.  4. 

4  See  Precedents,  Nos.  5,  19,  20  ;  Earl  Lucan  v.  Smith,  1  H.  &  N.  481  ;  26  L.  J. 
Ex.  94  ;  2  Jur.  N.  S.  1170  ;  Clinton  v.  Henderson,  13  Ir.  C.  L.  R.  App.  43  ;  Hort  v. 
Eeade,  Ir^  R.  7  C.  L.  551. 

5  Nixon  V.  Harvey,  8  Ir.  C.  L.  Rep.  446. 

6  See  Masuire  v.  Knox,  Ir.  R.  5  C.  L.  408  ;  Stannus  v.  Finlay,  Ir.  R.  8  C.  L.  264  ; 
Cosgrave  v.  Trade  Auxiliary  Co.,  Ir.  R.  8  C.  L.  349 ;  M'Longhlin  v.  Dwyev  (1),  Ir.  R. 
9  C.  L.  170. 

7  Spackman  v.  Gibney. 

8  Simmonds  v.  Dunne,  Ir.  R.  5  C.  L.  358. 

416 


JUSTIFICATION.  *  484 

"The  said  -words  were  spoken  by  the  defendant  whilst  in  the  witness 
box  during  his  examination  on  outh  as  a  witness,  in  the  course  of  a  judicial 
proceeding  before  an  alderman  at  Guildhall."  ^ 

"  The  said  words  are  part  of  an  official  report  written  by  the  defendant 
in  accordance  with  his  military  duty  for  the  information  of  his  military  su- 
periors, and  published  by  him  in  the  discharge  of  his  said  duty  to  such  mil- 
itary superiors  and  not  otherwise."  ^ 

"  Before  and  at  the  time  of  the  alleged  grievances  the  defendant  was  the 
son-in-law  of  the  Mrs.  Hawkins  mentioned  in  paragraph  3  of  the  Statement 
of  Claim.  The  defendant  was  informed,  as  the  fact  was,  that  she  was 
about  to  marry  the  plaintiff.  Thereupon  the  defendant  spoke  the  said 
words  confidentially  to  the  said  Mrs.  Hawkins,  without  malice,  and  in  the 
honest  desire  to  protect  her  private  interests,  and  those  of  the  defendant. 
The  defendant  at  the  time  bond  fide  believed  in  the  truth  of  what  he  said."  ^ 

It  is  necessary  where  the  occasion  is  not  absolutely  privileged  to  aver 
that  the  defendant  acted  bond  fide  and  without  malice.*  Such  an  allegation 
is  immaterial  in  cases  of  absolute  privilege.  If  defendant  avers  that  he 
had  just  and  reasonable  grounds  for  believing  the  charges  against  the  plain- 
tiff to  be  true,  he  must  set  forth  what  were  the  grounds  of  such  belief.^  It 
is  better  however  to  avoid  such  an  averment  altogether  and  to  state 
that  he  repeated  the  charge  *  bond  fide  and  in  the  honest  belief  in  *  485 
its  truth.  An  averment  of  just  and  reasonable  grounds  runs  dan- 
gerously near  to  a  justification,  and  the  averment  of  bona  fides  covers  and 
includes  it. 

9.  Justification. 

This  is  a  most  dangerous  plea,  and  should  never  be  placed  on  the  record 
without  careful  consideration  of  the  sufficiency  of  the  evidence  by  which 
it  is  to  be  supported,  (a)     For  the  strictest  proof  is  required  ;  ®  and,  if  not 

1  Si-e  Seaman  v.  Netlieiclift,  1  C.  P.  D.  540  ;  46  L.  J.  C.  P.  128  ;  25  W.  K.  159  ; 
35  L.  T.  784. 

2  Dawkiiis  V.  Lord  Paulet,  L.  R.  5  Q.  B.  94  ;  39  L.  J.  Q.  B.  53  ;  18  W.  P.  336  ;  21 
L.  T.  584. 

8  Todd  V.  Hawkins,  8  C.  &  P.  88  ;  2  Moo.  &  Rob.  20.  See  also  Precedents,  Nos. 
2,  11,  15,  17,  20,  39. 

*  Smith  V.  Thomas,  2  Bing.  N.  C.  372. 

5  Fitzgerald  v.  Campbell,  18  Ir.  Jur.  153  ;  15  L.  T.  74. 

6  See  Leyman  v.  Latimer,  3  Ex.  D.  15,  352  ;  47  L.  J.  Ex.  470  ;  25  W.  R.  751 ;  26 
W.  R.  305  ;  37  L.  T.  360,  819. 

(a)  See  ante,   p.   274.     But  a  plea  in  Whittaker  v.  Freeman,  1  Dev.  271  ;  Cilley 

justification  does  not,  with  or  without  the  v.   Jenness,   2  N.    H.   87.     The  contrary 

general  issue,  exempt  the  plaintitt' from  the  rule    prevailed    in     Massachusetts    until 

necessity  of  proving  tlie  words.      Fainan  chantred  by  statute.     Alderman  i'.  French, 

V.  Chihis,   66  111.   544  ;  Summer  v.  Chip-  1  Pick.  1  ;  Hix  v.  Drury,  5  Pick.  296. 
r.ian,  65  N.  Car.  623  {with  general  issue)  ; 

27  417 


*  485  PRACTICE   AND   EVIDENCE. 

proved,  the  defendant's  persistence  in  the  charge  is  some  evidence  of  mal- 
ice, and  will  always  tend  to  aggravate  the  damages  given  against  him.  The 
defence  cannot  be  raised  without  a  special  plea ;  but  counsel  should  never 
draw  such  a  plea  without  express  instructions,  and  even  then  should  always 
caution  the  defendant  as  to  the  risk  he  runs. 

When  the  libel  consists  of  one  specific  charge,  e.g.,  "  He  forged  my  name 
to  a  bill  for  £500,"  it  is  sufficient  to  plead  generally  :  —  "  The  said  words 
are  true  in  substance  and  in  fact."  So  if  the  charge  made  by  the  defendant 
were  :  —  "He  stole  his  master's  sheep,"  it  would  be  sufficient  to  allege 
that  "  the  plaintiff  did  steal  four  sheep  the  property  of  his  master,  John 
Jones."  But  whenever  a  general  charge  is  made,  the  very  words  alleged 
to  have  been  uttered  should  be  expressly  justified;^  and  also  specific 
instances  must  be  given,  either  in  the  plea  or  in  the  particulars.^  And  it 
is  not  sufficient  to  allege  and  prove  one  solitary  instance,  where  the  words 
impute  constant  and  habitual  misconduct.^  (a)  It  is  enough  to  cite  three 
instances.'* 

Tliese  instances  should  be  set  out  fully  in  the  plea;  they  should  be 

stated  to  have  happened  "  before  the  publication,  if  any,  of  the  said  words," 

and  then  the  plea  may  conclude,  "  Wherefore  the  defendant  says 

*  486    that  the  said  words  are  true  in  *  substance  and  in  fact."     Such 

instances  must  be  stated  with  sufficient  particularity  to  inform  the 
plaintiff  precisely  what  are  the  facts  to  be  tried.  As  a  rule  these  instances 
should  be  given  in  the  plea,^  But  if  they  are  numerous  or  complicated, 
they  may  be  stated  in  the  particulars  instead.e 

If  it  appears  from  the  words  set  out  in  the  statement  of  claim  that  the 
defendant  did  not  make  a  direct  charge  himself,  but  only  repeated  what 
A.  said,  then  a  general  plea  that  the  words  are  true  will  be  insufficient ; ' 
for  it  will  only  amount  to  an  assertion  that  A.  said  so  ;  whereas  the  defend- 
ant must  go  further  and  prove  in  addition  that  what  A.  said  was  true.^ 

1  Per  Quain,  J.,  in  Restell  &  another  v.  Steward,  Weekly  Notes,  1875,  p.  249  ; 
1  Charlev,  89  ;  Bitt.  65  ;  20  Sol.  J.  140  ;  60  L.  T.  Notes,  123. 

2  Newman  v.  Bailey,  2  Chit.  665  ;  I'Anson  v.  Stuart,  1  T.  R.  748  ;  2  Sm.  Lg.  Cas. 
6th  ed.  57  ;  Holmes  v.  Catesby,  1  Taunt.  543  ;  Hickiubotham  v.  Leach,  10  ]\I.  k  \V. 
361. 

8  Wakley  v.  Cooke  &  Healey,  4  Ex.  511  ;  19  L.  J.  Ex.  91. 

4  Moore  v.  Terrell  and  others,  4  B.  &  Ad.  870  ;  1  N.  &  M.  559. 

6  Hone.ss  k  others  v.  Sl^bbs,  7  C.  B.  N.  S.  555  ;  29  L.  J.  C.  P.  220  ;  6  Jnr.  N.  S. 

682. 

6  Behrens  v.  Allen,  8  Jur.  N.  S.  118  ;  3  F.  &  F.  135  ;  Jones  v.  Bewicke,  L.  E. 
5  C.  P.  32  ;  Gourley  v.  Plimsoll,  L.  R.  8  C.  P.  362  ;  42  L.  J.  C.  P.  121  ;  21  W.  R. 
683  ;  28  L.  T.  598. 

7  Duncan  v.  Thwaites,  3  B.  &  C.  556. 

8  See  ante,  pp.  173-6. 

(a)  Stowell  V.  Beagle,  79  111.  525  ;  s.  c.  57  111.  97. 

418 


JUSTIFICATION.  *  486 

The  precise  charge  must  be  justified;  and  the  whole  of  the  precise 
charge.^  Every  fact  stated  must  be  proved  true,*^  unless  it  be  absolutely 
immaterial  and  trivial,  and  in  no  way  alters  the  complexion  of  the  affair. 
But  not  every  comment  on  such  facts  need  be  justified.  Thus,  if  the 
defendant  states  certain  facts,  and  then  calls  the  plaintiff  a  "  scamp  "  and 
a  "  rascal,"  and  such  epithets  would  be  deserved  if  the  facts  as  stated  are 
true,  then  it  is  sufficient  to  plead  the  truth  of  the  facts ;  the  epithets  need 
not  be  expressly  justified.^  But  if  the  comment  introduces  an  independent 
fact,  or  substantially  aggravates  the  main  imputation,  it  must  be  expressly 
justified.  Thus  a  libellous  heading  to  a  newspaper  article  must  be  justified 
as  well  as  the  facts  stated  in  the  article.* 

But  the  defendant  may  in  mitigation  of  damages  justify  a  part  of  the 
libel,  provided  such  part  is  distinct  and  severable  from  the  rest.^  {a)  Also 
the  defendant  may  deny  that  the  plaintiff's  innuendo  puts  the  true 
construction  on  *  the  words  and  assert  that  in  their  natural  and  '^oi 
ordinary  signification  they  are  true.  Such  a  plea  might  be  in  the 
following  form  :  —  "The  defendant  denies  that  he  spoke  or  published  the 
said  words  of  the  plaintiff  with  the  meaning  alleged  in  paragraph  3  of 
the  Statement  of  Claim.  The  said  words,  without  the  said  meaning,  and 
according  to  their  natural  and  ordinary  signification  are  true  in  substance 
and  in  fact."^  But  if  the  defendant  adopts  the  meaning  put  upon  the 
words  by  the  innuendo,  then  he  must  justify  them  in  that  sense,  and  not 
in  any  other.''  Where  a  plaintiff  claims  damages  for  a  libel  contained  in  a 
letter  set  out  with  innuendoes,  a  justification  in  the  form  —  "The  state- 
ments in  the  said  letter  are  true,"  is  a  justification  of  the  libel  itself,  but 
not  of  it  as  read  with  the  innuendo.^  For  a  plea  of  justification  under  the 
new  system  will  "  not  be  taken  to  intend  a  justification  of  anything  more 
than  it  actually  professes  to  justify."  But  any  plea  which  wears  a  doubtful 
aspect,  which  may  be  either  a  justification,  or  a  mere  traverse,  or  a  plea  of 
privilege,  will  be  struck  out  at  chambers  as  embarrassing.^ 

*  Goodburne  v.  Bowman  &  others,  9  Bing.  532. 

2  Weaver  v.  Lloyd,  2  B.  &  C.  67S  ;  Helsham  v.  Blackwood,  11  C.  B.  Ill  ;  20  L.  J. 
C.  P.  187  ;  15  Jur.  861. 

3  Movrison  v.  Harmer,  3  Bing.  N.  C.  767  ;  4  Scott,  533  ;  3  Hodges,  108  ;  Tiglie  v. 
Cooper,  7  E.  &  B.  639  ;  26  L.  J.  Q.  B.  215  ;  3  Jur.  N.  S.  716. 

<  Bishop  V.  Latimer,  4  L.  T.  775  ;  Clement  v.  Lewis  &  others,  3  Br.  &  Bing.  297  ; 
3  B.  &  Aid.  702  ;  7  Moore,  200.     See  ante,  pp.  170-3. 

6  See  ante,  p.  176.  ®  See  ante,  p.  177. 

7  White  V.  Tyrrell  (2),  5  Ir.  C.  L.  R.  493. 

8  Per  Archibald,  J.,  at  Nisi  Prius,  in  Payne  v.  Courthope,  20  Sol.  Joum.  724. 

9  Carr  v.  Duckett,  5  H.  &  N.  783  ;  29  L.  J.  Ex.  468  ;  Bremiidge  v.  Latimer,  12 
W.  R.  878  ;  10  L.  T.  816  ;  O'Keefe  v.  Cardinal  Cullen,  Ir.  R.  7  C.  L.  319. 

(a)  Stacy  v.  Portland  Pub.  Co.,  68  Maine,  279. 

419 


*  487  PEACTICE   AND    EVIDENCE. 

« 

A  defendant  will  not  be  allowed  to  amend  his  defence  and  plead  a  justi- 
■"tion  at  the  last  moment,  e.g.,  on  the  day  before  the  trial. ^ 

10.  AjMlogy. 

By  Lord  Campbell's  Libel  Act,^  in  an  action  for  a  libel  contained  in  any 
public  newspaper  or  periodical  publication,  the  defendant  may  plead  that 
the  libel  was  inserted  without  actual  malice  and  without  gross  negligence, 
and  that  before  the  commencement  of  the  action,  or  at  the  earliest  oppor- 
tunity afterwards,  an  apology  was  published  or  offered,  and  may  pay  money 
into  Court  by  way  of  amends.  Money  must  be  paid  into  Court  when  the 
pleading  is  delivered  if  not  before.^  But  such  payment  will  not  operate 
as  an  admission  of  liability,  even  to  the  amount  i)aid  in.*     Any 

*  488    other  pleas  may  be  pleaded  *  at  the  same  time.^ 

The  following  is  the  form  of  a  plea  under  Lord  Campbell's  Act  : 
—  "  The  alleged  libel  was  contained  in  a  public  daily  newspaper  called  the 

Daily  Press,  and  was  inserted  in  such  newspaper  without  actual 

malice  and  without  gross  negligence.  Before  the  commencement  of  this 
action  [or  at  the  earliest  opportunity  after]  the  defendant  inserted  in  several 
issues  of  the  said  newspaper  a  full  apology  for  the  said  libel  according  to 
the  statute  in  such  case  made  and  provided  ;  and  the  defendant  immediately 
after  the  commencement  of  this  action  paid  the  sum  of  forty  shillings  into 
Court  in  the  said  action  by  way  of  amends  for  the  injury  sustained  by  the 
plaintiff  for  the  publication  of  the  said  libel,  and  gave  notice  of  such  pay- 
ment into  Court  to  the  plaintiff.  And  the  defendant  says  that  the  said 
sum  is  enough  to  satisfy  the  claim  of  the  plaintiff  in  respect  of  the  said 
ibel." 

The  above  section  of  Lord  Campbell's  Act  applies  only  to  public  period- 
ical pubHcations;  but  s.  1  of  the  same  Act  empowers  any  defendant  to 
give  in  evidence  in  mitigation  of  damages  in  any  action,  whether  of  slander 
or  libel,  that  he  made  or  offered  an  apology  to  the  plaintiff  before  action,  or 
at  the  earliest  opportunity  afterwards,  if  he  had  no  opportunity  before 
action.  This  section  distinctly  does  not  empower  a  defendant  to  plead  an 
apology ;  for  it  requires  him  ivith  his  plea  to  give  notice  in  writing  to  the 
plaintiff  of  his  intention  to  give  such  apology  in  evidence.  But  there  can 
be  no  objection  now  to  the  plaintiff  making  such  written  notice  part  of  his 
statement  of  defence ;  indeed  that  he  made  such  an  apology  is  a  material 
fact  on  which  he  relies,  within  the  meaning  of  Order  XIX.  r.  4.     I  incline 

1  Kirby  v.  Simpson,  3  Dowl.  791. 

2  6  &  7  Vict.  c.  96,  s.  2.  s  s  &  9  Vict.  c.  75,  s.  2. 

4  Jones  V.  Mackie,  L.  R.  3  Ex.  1  ;  37  L.  J.  Ex.  1 ;  16  W.  R.  109  ;  17  L.  T.  151. 

5  Hawkesley  v.  Bradshaw  (C.  A.),  5  Q.  B.  D.  302  ;  49  L.  J.  Q.  B.  333 ;  28  W.  R. 
557  ;  42  L.  T.  285  ;  joos/,  p.  492. 

420 


ACCOr.D   AND    SATISFACTION.  *  488 

to  think  that  it  is  now  no  longer  objectionable  for  a  defendant  to  state  in 
his  pleading  facts  which  are  no  defence,  but  which  tend  to  mitigate  the 
damages.  At  least,  I  do  not  see  how  such  a  method  of  pleading  could 
embarrass  a  plaintiff :  it  gives  him  notice  what  will  be  the  defendant's 
case  at  the  trial. 

But  it  is  quite  another  matter  for  the  defendant  in  his  Statement  of 
Defence  to  apologize  for  the  firs^  time,  when  he  had  previous  opportuni- 
ties, of  which  he  did  not  avail  himself.  Still  this  is  frequently 
done  when  money  is  paid  into  Court  :  it  *  shows  that  the  defend-  "iSy 
ant  has  taken  his  counsel's  opinion,  and  acted  on  it.  It  certainly 
cannot  embarrass  a  plaintiff  to  have  placed  upon  the  record  a  full  retracta- 
tion of  the  charge  accompanied  by  an  expression  of  regret ;  and  it  should 
conduce  to  an  amicable  settlement.^  But  it  is  certainly  strange  pleading ; 
and  if  the  plaintiff  wishes  to  have  it  struck  out,  his  application  will  proba- 
bly be  successful ;  though  he  can  hardly  afterwards  demand  an  apology  at 
the  trial. 

11,  Accord  and  Satisfaction. 

"The  plaintiff  was  the  proprietor  and  publisher  of  a  certain  weekly  jour- 
nal called  the  Musical  Review ;  and  the  defendant  was  the  proprietor  and 
publisher  of  another  weekly  journal  called  the  Orchestra.  And,  after  the 
publication,  if  any,  of  the  said  words,  the  plaintiff  and  defendant  agreed  to- 
gether to  accept  certain  mutual  apologies,  to  be  published  by  the  plaintiff 
and  defendant  respectively  in  their  said  weekly  journals,  in  full  satisfaction 
and  discharge  of  all  the  causes  and  rights  of  action  in  the  declaration  men- 
tioned, and  all  damages  and  costs  sustained  by  the  plaintiff  in  respect 
thereof.  And  thereupon,  in  pursuance  of  the  said  agreement,  the  defendant 
did,  on  the  14th  of  May,  1864,  print  and  publish  his  part  of  the  said  mu- 
tual apologies  in  the  form  agreed  on  in  his  weekly  journal  the  Orchestra, 
of  which  the  plaintiff  had  notice.  And  tlie  plaintiff  did  also  after  the 
.  making  of  the  said  agreement  and  in  pursuance  thereof,  to  wit,  on  the  14th 
of  May,  18G4,  print  and  publish  his  part  of  the  said  apologies  in  the  form 
agreed  on  in  his  said  weekly  journal,  the  Musical  Review.  And  such  ai)ol- 
ogies  so  published  as  aforesaid  the  plaintiff  accepted  and  received  in  full 
satisfaction  and  discharge  of  the  causes  of  action  set  out  in  the  statement 
of  claim." 

A  similar  plea  under  the  old  practice  was  held  a  bar  to  the  action  in 
Boosey  v.  Wood.^ 

1  See  Precedent,  No.  34. 

2  3  H.  &  C.  484  ;  34  L.  J.  Ex.  65.  See  also  Lane  v.  Applegate,  1  Stavk.  97.  As 
to  accord  and  satisfaction  made  by  one  jointly  liable  witli  the  defendant,  see  Bain- 
bridge  V.  Lax,  9  Q.  B.  819  ;  Thurnian  v.  Wild,  11  A.  &  E.  4j3  ;  Hey  v.  Moorhouse,  6 
Bing.  N.  C.  52. 

421 


*  489  PEACTICE  AND   EVIDENCE. 

An  accord  or  satisfaction  made  by  a  third  party  on  the  defendant's  be- 
half, and  accepted  by  the  plaintiff  in  discharge  will  be  a  bar  to  the  action.^ 

*490  *12.  Statute  of  Limitations. 

"The  alleged  cause  of  action  did  not  accrue  within  six  years  before  this 
suit ;  "  or  in  the  case  of  slander  actionable  p^'r  se,  "  The  words  complained 
of  were  not  spoken  within  two  years  before  this  suit."  ^ 

13.  Previous  Action. 

"The  plaintiff  heretofore,  to  wit,  on  the day  of ,  1878  (date 

of  writ),  sued  tlie  defendant  in  the Division  of  this  Honorable  Court, 

for  the  same  cause  of  action  as  is  alleged  in  the  Statement  of  Claim  lierein  ; 
and  such  proceedings  were  thereupon  had  in  that  action  that  the  plaintin 
afterwards  by  the  judgment  of  the  said  Court  recovered  against  the  defend- 
ant Jl for  the  said  cause  of  action,  and  his  costs  of  suit  in  that  behalf ; 

and  the  said  judgment  still  remains  in  force."  (a)  State  in  the  margin  of 
the  plea  the  date  when  such  judgment  was  signed,  and  the  number  of  the 
roll  in  which  such  proceedings  are  entered.^ 

A  plea  that  judgment  was  recovered  against  a  joint  publisher  will  also 
be  a  bar  to  an  action  against  the  others  for  the  same  publication.'^  (h) 

A  plea  that  in  a  former  action  judgment  was  given  against  the  plaintiff, 
is  really  a  plea  in  estoppel,  (c-)  Commence  as  above.  "  And  such  proceed- 
ings were  thereupon  had  in  that  action  that  afterwards  and  before  this  suit 
it  was  considered  by  the  judgment  of  the  said  Court  in  the  said  action  that 
the  plaintiff  should  take  nothing  by  his  writ  for  or  in  respect  of  the  said 

cause  of  action.     The  said  judgment  was  signed  on  the day  of , 

A.D.  1878,  and  still  remains  in  force.     [The  proceedings  are  entered  on  roll 

1^0. .]     Wherefore  the  defendant  says  that  the  plaintiff  is  estoppeil, 

and  ought  not  to  be  admitted  to-  bring  the  present  action  against  the  de- 
fendant." 

1  Jones -y.  Broadhurst,  9  C.  B.  173.  2  gee  ante,  p.  4.55. 

»  Reg.  Gen.  Hilary  Term,  1853,  r.  10.  *  See  ante,  p.  457. 

(a)  What  is  included  in  the  judgment,  (c)  Not  so  of  judgment  in  a  criminal 

see  Campbell  v.  Butts,  3  Comst.  173  ;  also  action  ;  that  would  he  no  Lar   to  a  civil 

note  on  repetitions,  ante,  p.  271,  n.  suit.     Nor  would  any  special  or    general 

(h)  But  a  former  judgment  in  a  suit  by  verdict  therein  be  conclusive  in  acivilpro- 

a  firm  for  slander  is  held  to  be  no  bar  to  a  ceeding.     The  parties  are  diflerent,  and  a 

suit  by  one  of  the  partners  for  tlie  same  criminal  judgment  is  not  a  judgment  in 

words.     Duffy  v.  Gray,  52  Mo.  528.     The  rem.      Corbley   v.   Wilson,    71    HI.   209  ; 

slander  in  tliis  case  mentioned  the  partners  McBee  v.  Fulton,  47  Md.   403.     See  also 

each  by  name.     See  also  Noonan  v.  Orton,  ante,  p.  292,  note. 
32  Wis.  106,  that  the  partners  may  sue 
separately  for  words  of  the  firm. 

422 


OTHER  DEFENCES.   PAYMENT  INTO  COURT.     *  490 


14,    Other  Defences. 


2 


In  ail  American  case,^  the  defendant  pleaded  a  release. 

*  By  virtue  of  the  Married  Women's  Property  Act  Amendment  *  491 
Act,  1874,3  s.  2,  a  husband,  if  sued,  fur  a  libel  or  slander  pubhshed 
or  uttered  by  his  wife  before  her  marriage,  may,  in  addition  to  any  other 
pleas,  plead  that  no  property  vested  in  him  by  reason  of  the  marriage  with- 
in the  meaning  of  s.  5,  or  if  a  certain  amount  of  property  did  so  vest  in 
him,  then  that  he  is  liable  to  that  extent,  and  no  further. 

By  Order  XIX.  r.  3,  it  is  provided  that  "  no  plea  or  defence  shall  be 
pleaded  in  abatement :  "  but  we  are  not  told  what  course  to  adopt  in  cases 
where  such  a  plea  would  formeriy  have  been  good.  Where  a  man  and 
woman  sue  as  husband  and  wife  for  slander  of  the  woman,  the  defendant  is 
surely  still  entitled  to  plead  that  they  are  not  husband  and  wife  ;  for,  if  so, 
the  male  plaintiff  has  no  right  of  action.*  (a) 


15.  Payment  into  Court. 

Payment  into  Court  is  not  strictly  a  defence :  it  is  rather  a  payment  in 
mitigation  of  damages,  allowed  as  a  favor  to  defendants  by  statute,  in  the 
hope  that  thereby  many  actions  may  be  settled  out  of  Court.  Such  a  plea 
was  not  formerly  allowed  in  all  actions  of  tort :  but,  where  allowed,  its  ef- 
fect always  was  to  admit  that  the  plaintiff  had  a  cause  of  action  against  the 
defendant;  and  if  the  declaration  was  specific  to  admit  the  cause  of  action 
therein  specified ;  so  that  the  only  question  left  for  the  jury  was  that  of 
damages  ultra,  that  is.  Is  the  sum  so  paid  into  Court  sufficient  to  compen- 
sate .the  plaintiff,  or  is  he  entitled  to  more  1  ^ 

By  s.  70  of  the  C.  L.  P.  Act,  1852,  payment  into  Court  was  allowed  in 
all  actions  except?  actions  for  assault  and  battery,  false  imprisonment,  libel, 
slander,  or  malicious  arrest  or  prosecution,  or  debauching  the  plaintiff's 
daughter  or  servant.     But  s.  2  of  6  &  7  Vict.  c.  96,^  was  left  unaffected. 

But  now  by  the  Judicature  Act:''  — "  Wliere  any  action  is  brought 
to  recover  a  debt  or  damages,  any  defendant  may  at  any  time  after  ser- 
vice of  the  writ,   and  before  or  at  the  time  of  delivering  his  defence, 


1  Beach  et  ux  v.  Beach,  2  Hill,  260. 

2  Src  ante,  p.  349.  3  37  &  38  Vict.  c.  50. 

*  See  Chantlev  and  wife  v.  Lindsey,  16  M.  &  W.  82  ;  4  Dowl.  &  LowuJes,  339. 

s  Perren  v.  Monmouthshire  Railway  Co.,  11  C.  B.  855. 

«  Ante,  p.  487.  ^  Order  XXX.  r.  1. 

(a)  At  common  law  it  is  enough  in  an     tiffs  were  married  at  the  time  of  suing, 
action  for  slander  of  the  wife  that  the  plain-     Spencer  v.  McMasters,  16  111.  405. 

423 


*  491  PllACTICE  AND   EVIDENCE. 

or  by»leave  of  the  Court  or  a  judge  at  any  later  time,  pay  into 

*  492    Court  a  sum  of  money  by  way  *  of  satisfaction  or  amends."  •    These 

words  are  so  wide  that  they  must  be  taken  to  overrule  s.  70  of  the 
C.  L.  P.  Act,  1852,  and  money  therefore  can  now  be  paid  into  Court  in 
actions  of  slander  as  well  as  libel.  And,  moreover,  such  payment  into 
Court,  if  properly  pleaded,  will  not  operate  as  an  admission  of  the  cause  of 
action.  This  was  decided  by  the  Court  of  Appeal  in  Potter  v.  Home  and 
Colonial  Assurance  Co.  (not  reported).  But  shortly  afterwards  the  Queen's 
Bench  Division  decided  that  although  such  a  payment  need  not  necessarily 
be  an  admission  that  the  plaintiff  had  a  cause  of  action,  still  to  plead  pay- 
ment into  Court  and  to  deny  the  plaintifC's  right  of  action  in  respect 
of  the  same  part  of  tlie  statement  of  claim  might  in  special  circumstances 
be  embarrassing  to  the  plaintiff,  and  therefore  such  a  pleading  would  be 
amended  under  Order  XXVII.  r.  1.^  This  decision,  however,  must  be 
considered  to  be  strictly  conhned  to  actions  of  its  own  peculiar  character, 
and  not  to  lay  down  any  general  rule.  For  the  general  rule  is  the  reverse, 
that  a  defendant  may  by  his  statement  of  defence  deny  the  plaintiff's  causes 
of  action,  and  at  the  same  time  plead  payment  into  Court  in  respect  of  the 
whole  or  any  part  of  them.^  In  that  case,  Brett  and  Thesiger,  L.JJ.,  after 
laying  down  this  general  rule,  add  :  —  "It  may,  however,  possibly  be  that 
in  some  actions  brought  to  try  a  right  of  or  in  respect  of  property  which  is 
denied,  or  to  establish  character  ivhich  has  been  assailed,  and  in  actions  Avhere 
the  plaintift^  is  by  the  statement  of  defence  charged  with  fraud,  and  perhaps 
in  some  other  cases,  it  would  be,  as  a  matter  of  practice,  improper  to  allow 
the  defence  of  payment  into  Court  concurrently  with  other  defences."  And 
Cotton,  L.J.,  also  says:— "I  am  of  opinion  that  the  paragraph  in  ques- 
tion cannot  be  considered  as  in  any  way  tending  *  to  prejudice,  embarrass, 
or  delay  the  fair  trial  of  the  action  ; '  but  there  may  be  special  cases  in 
which  this  would  be  the  effect,  as  in  actions  for  libel,  which  the  defendant 
by  his  statement  of  defence  justifies." 

This  very  point  was  raised  before  the  Queen's  Bench  Division  in 

*  493    Hawkesley  v.  Bmdshaw.^     There  the  defendant  admitted  the  *  pub- 

lication but  traversed  the  innuendo  ;  then  said  that  the  words  with- 
out the  alleged  meaning  were  true  in  substance  and  in  fact ;  then  that  the 
words  were  bona  fide  comment  on  a  matter  of  public  interest,  and  therefore 
not  libellous ;  and  then  pleaded  under  Lord  Campbell's  Act  that  they  Avere 
published  inadvertently,  and  apologized,  and  paid  forty  shillings  into  Court. 
This  mode  of  pleading  the  Court  held  to  be  embarrassing  under  Order 

1  Post,  p.  499.     Spurr  v.  Hall,  2  Q.  B.  D.  615  ;  46  L.  J.  Q.  B.  693  ;  26  W.  R.  678  ; 
37  L.  T.  313. 

2  Berdan  v.  Greenwood  and  another  (C.  A.),  3  Ex.  D.  251  ;  47  L.  J.  Ex.  628  ;  26 
W.  E.  902  ;  39  L.  T.  223. 

8  5  Q.  B.  D.  22  ;  49  L.  J.  Q.  B.  207  ;  28  W.  R.  167 ;  41  L.  T.  653. 

,424 


COUNTERCLAIMS.  *  493 

XXVII.  r.  1  ;  and  both  Cockburn,  C.J.,  and  Manisty,  went  further  and 
hekl  that  Order  XXX.  r.  1  did  not  apply  to  actions  for  libel,  and  that  pay- 
ment into  Court  in  actions  of  libel  could  still  only  be  pleaded  under  Lord 
Campbell's  Act,  and  therefore  still  operated  as  an  admission  of  the  cause  of 
action.  But  the  Court  of  Appeal^  held  that  the  rule  in  Berdan  v.  Green- 
wood applied  to  actions  of  libel  and  to  everything  else ;  that  a  plea  under 
Lord  Campbell's  Act  can  be  pleaded  with  any  other  defences;  that  such  a 
method  of  pleading  was  not  embarrassing;  and  that  the  plaintiff's  course, 
if  the  imputation  was  a  serious  one,  was  to  go  down  to  trial  trusting  to  the 
judge  and  juries  to  protect  him,  either  in  the  way  of  damages  or  of  costs, 
in  the  event  of  the  justification  ftiiling.  It  will  in  future  be  almost  impos- 
sible for  any  collocation  of  pleas  in  an  action  of  defamation  to  be  held  em- 
barrassing within  Order  XXX.  r.  L^ 

However,  no  doubt  when  it  comes  to  trial,  a  payment  into  Court  will 
generally  be  considered  by  the  jury  a^  a  practical  admission  that  defendant 
is  somehow  in  the  wrong,  and  this  as  a  matter  of  common  sense  and  not  of 
law.  I  should  not,  therefore,  advise  any  defendant  who  had  a  fair  defence 
on  the  merits  to  pay  money  into  Court.  Nor  again  is  it  generally  worth 
while  to  pay  a  farthing  or  a  shilling  into  Court ;  for  it  is  very  improbable 
that  plaintiff  will  accept  that  sum,  and  if  the  jury  do  not  award  more  than 
such  contemptuous  damages,  the  judge  would  probably  order  plaintiff  to 
pay  his  own  costs.  If  defendant  is  going  to  pay  anything  into  Court,,  he 
should  pay  a  good  round  sum ;  generally  twice  as  much  as  the  defendant 
himself  thinks  the  plaintiff  is  entitled  to,  will  be  about  the  right  amount 
for  him  to  pay  into  Court. 

*  If  it  be  desired  to  pay  money  into  Court  and  at  the  same  time  *  494 
to  guard  against  any  admission,  the  plea  should  commence  with  a 
saving  clause  as  in  Berdan  v.  Greenwood:  —  "Lest  contrary  to  Avhat  the 
defendant  beheves  and  contends  he  is  under  any  liability  to  the  plaintiff," 
or  thus,  "  The  defendant,  while  not  admitting  that  he  is  under  any  liability 
to  the  plaintiff,  yet  brings  into  Court  the  sura  of  £ ,  &c."  At  what- 
ever stage  of  the  action  the  money  be  paid  into  Court,  the  payment  must 
be  specially  pleaded  in  the  statement  of  defence. 

'»  Counterclaims. 

It  is  not  often  that  there  is  a  counterclaim  in  an  action  for  libel  or  slan- 
der, and  it  would  clearly  be  prejudicial  to  the  fair  trial  of  the  action  to 
permit  a  defendant  to  raise  incongruous  issues.  Still  there  is  no  reason 
why  other  libels  or  slanders  published   by  the  plaintiff  of  the   defendant 

1  5  Q.  B.  D.  302  ;  49  L.  J.  Q.  B.  333  ;  28  W.  R.  557  ;  42  L.  T.  285. 

2  O'Brien  v.  Clement,  15  M.  &  W.  435  ;  15  L.  J.  Ex.  285  ;  3  D.  &  L.  676  ;  10  Jur. 
395  ;  and  Barry  v.  il'Grath,  Ir,  R.  3  C.  L.  5»76,  are  noWclearlv  oveiruled. 

425 


*494  PRACTICE   AND   EVIDENCE. 

should  not  be  made  matter  of  counterclaim,  and  the  fact  that  they  arise  out 
of  a  different  transaction  will  he  no  ground  for  excluding  them.^  Though 
of  course  a  master  at  chambers  may  on  the  application  of  the  plaintiff 
before  trial,  strike  out  a  counterclaim,  if  in  his  opinion  it  "  cannot  be  con- 
veniently disposed  of  in  the  pending  action,  or  ought  not  to  be  allowed." 
In  Nicholson  v.  Jackson,^  where  an  action  had  been  brought  by  a  director 
of  a  company  for  libel,  a  counterclaim  set  up  by  the  defendant  for  damages 
for  loss  sustained  in  respect  of  shares  bought  on  false  representations,  was 
struck  out,  Lindley,  J.,  remarking,  "  This  is  one  of  those  cases  where  it 
would  be  very  difficult  to  keep  the  jury  from  mixing  up  the  two  claims." 
So  in  Lee  v.  Colyer,^  Quain,  J.,  struck  out  a  counterclaim  for  not  repairing 
a  house,  the  action  being  for  assault  and  slander.  But  in  Dobede  v.  Fisher, 
at  tlie  Cambridge  Summer  Assizes,  1880,  the  Lord  Chief  Baron  had  to  try 
an  action  of  slander,  in  which  there  was  a  counterclaim  about  a  right  of 
shooting  over  the  land  occupied  by  the  defendant.*  Where  however  the 
action  Avas  for  two  quarters'  rent  and  the  writ  was  specially  indorsed  for 
30^.,  the  defendant  was  not  allowed  to  set  up  a  counterclaim  for 
*  495    libel  and  slander  not  connected  *  with  the  claim  for  rent.^ 

Facts  relied  on  in  support  of  a  counterclaim  must  be  specifically 
stated  as  such;  they  must  be  distinguished  from  the  facts  relied  on  as 
defence  proper.®  But  of  course  they  need  not  be  repeated  at  full  length, 
if  they  have  been  previously  set  out  in  the  statement  of  defence.  It  is 
sufficient  to  say  :  —  "  And  by  way  of  set-off  [or  counterclaim,  or  both]  the 
defendant  repeats  the  allegations  contained  in  paragraphs  5,  6,  8  and  10 
above,  and  says  further,  &c." '' 

A  counterclaim  is  in  the  nature  of  a  cross-action  commenced  at  date  of 
■writ.  Hence  no  counterclaim  arising  after  action  brought  can  strictly  be 
pleaded  without  leave,  although  a  defence  proper  can.«  In  EUis  v.  Mun- 
son,^  leave  had  been  obtained.  Such  a  counterclaim  must,  of  course,  be 
expressly  pleaded  j!)^^^s  darrein  continuance. 

Where  the  defendant  is  a  foreigner  residing  out  of  jurisdiction,  and  sets 
up  a  counterclaim  arising  out  of  the  same  facts  as  the  plaintiff's  claim,  the 

1  Quin  V.  Hession,  40  L.  T.  70  ;  4  L.  R.  (Ir.)  35. 

2  W.  N.  1876,  p.  38. 

8  W.  N.  1876,  p.  8  ;  Bitt.  80  ;  1  Charley,  86  ;  20  Sol.  J.  177  ;  60  L.  T.  Notes,  157. 

4  Times  for  July  29th,  1880. 

e  Eotheram  v.  Priest,  49  L.  J.  C.  P.  104  ;  28  W.  R.  277 ;  41  L.  T.  558. 

•>  Crowe  V.  Barnicot,  37  L.  T.  68. 

7  Birmingham  Estates  Co.  v.  Smith,  13  Ch.  D.  506  ;  49  L.  J.  Ch.  251  ;  28  W.  R. 

666  ;  42  L.  T.  111. 

8  Order  XX.  Per  Jessel,  M.R.,  in  Original  Hartlepool  Colliery  Co.  v.  Gibb,  5  Ch. 
D.  713;  46  L.  J.  Ch.  311  ;  36  L.  T.  433. 

»  C.  A,,  35  L.  T.  585  ;  Weekly  Notes,  1876,  p.  253. 
426 


JUDGIMENT   IN   DEFAULT   OF   TLEADIXG.      EEPLY.        *  495 

plaintiff  will  not  be  entitled  to  security  for  the  costs  of  such  counterclaim 
even  though  its  amount  exceeds  that  of  his  claim. ^ 


Judgment  in  Default  of  Pleading. 

The  defendant  is  bound  (unless  the  time  is  enlarged  by  a  master  at 
chambers,  or  by  consent  under  Order  LYII.  r.  6a,  E.  S.  C.  April,  1880, 
r.  42)  to  deliver  his  defence  within  eight  days  from  the  delivery  of  the 
claim  or  from  the  time  limited  for  appearance,  whichever  is  last.^  Failing 
his  doing  so,  the  plaintiff  may  enter  an  interlocutory  judgment  against  the 
defendant,  in  default  of  pleading.  A  writ  of  inquiry  will  then  issue  to 
assess  the  damages,  unless  the  judge  at  chambers  order  them  to  be  ascer- 
tained in  another  way.  But  if  there  be  several  defendants  and 
one  or  more  make  default,  *  the  damages  against  him  or  those  in  *  496 
default  must  be  assessed  at  the  trial  of  the  action  against  the  other 
defendants,  unless  a  master  at  chambers  shall  otherwise  direct.^ 

But  a  solicitor  should  never  "snap  a  judgment,"  if  he  has  any  reason 
for  supposing  that  the  delay  in  pleading  is  accidental  or  unavoidable.^  And 
even  where  there  has  been  no  unseemly  haste  in  signing  judgment,  still  the 
judgment  will  generally  be  set  aside  on  an  affidavit  of  merits,  on  the  terms 
that  the  defendant  pay  costs  occasioned  by  his  default,  plead  the  same  day, 
and,  if  need  be,  take  short  notice  of  trial. 

Reply. 

The  plaintiff  on  receiving  the  statement  of  defence  should  first  see  whether 
any  part  of  it  is  so  objectionable  as  to  entitle  him  to  apply  at  chambers  for 
an  order  to  amend  it,  under  Order  XXVII.  rr.  1,  6.  Paragraphs  in  the 
nature  of  an  informal  demurrer  may  be  struck  out  as  embarrassing  under 
this  rule.^  Then,  it  may  be  that  his  own  statement  of  claim  may  require 
amendment ;  such  amendment  now  takes  the  place  of  a  "  new  assign- 
ment." ®  Next,  if  the  pleading  is  not  so  bad  as  to  require  amendment, 
particulars  may  still  be  demanded.  Thus,  where  the  libel  imputed  that 
the  plaintiff  had  infringed  defendant's  patents,  the  defendant  was  ordered 
to  deliver  particulars  to  the  plaintiffs,  showing  in  what  respects  he  alleged 
that  the  plaintiffs  had  infringed  his  patents,  and  giving  references  to  line 
and  page  of  his  own  specifications.'^     But   of  course  particulars  will  only 

1  Mapleson  v.  Mashii,  5  Q.  B.  D.  144  ;  49  L.  J.  Q.  B.  423  ;  28  W.  E.  488  ;  42 
L.  T.  531. 

2  Ord.  XIX.  r.  2  ;  Ord.  XXII.  r.  1. 

3  Ord.  XXIX.  rr.  4,  5.  *  Canada  Oil  Works  v.  Hay,  W.  N.  1878,  \\  107. 
6  Stokes  V.  Grant  and  others,  4  C.  P.  D.  25  ;  27  W.  R.  397  ;  40  L.  T.  36. 

6  Order  XIX.  r.  14.  \  Wren  and  another  v.  Weild,  38  L.  J.  Q.  B.  88. 

427 


*  496  PEACTICE   AND   EVIDENCE. 

be  ordered  of  such  of  defendant's  words  as  are  material  in  the  present 
action.^ 

If  no  facts  he  stated  in  a  plea  of  justification  the  plaintiff  should  apply 

for  particulars,  unless  the  charge  itself  he  specific  and  precise.^     If  the 

facts  stated  are  insufficient  in  law  to  justify  the  imputation,  the  defendant 

should  demur,  or  apply  to  have  the  plea  struck  out  or  amended. 

*  497    So,  *  too,  a  plea  of  privilege  is  often  demurred  to.     But  the  plain- 

tiff should  never  demur  unless  he  is  sure  that  his  own  previous 
pleading  is  perfectly  good  in  law.  For  by  demurring  he  submits  the  whole 
record  to  the  judgment  of  the  Court,  and  his  counsel,  who  came  to  attack 
the  defence,  may  suddenly  be  called  on  to  defend  his  own  statement  of 
claim,  as  in  Clay  v.  Eoberts.^ 

A  reply  as  a  rule  is  a  mere  joinder  of  issue  in  actions  of  defamation, 
unless  there  be  a  counterclaim.  Joinder  of  issue  will  operate  as  a  denial 
of  every  material  allegation  of  fact  in  the  pleading  of  the  other  side,  except 
facts  admitted.*  To  a  plea  of  absolute  privilege  no  other  reply  can  be 
framed  -^ich  is  not  demurrable."  To  a  plea  of  qualified  privilege  a  special 
reply  is  unnecessary,  if  malice  be  alleged  in  the  statement  of  claim.  On  a 
plea  under  s.  2  of  Lord  Campbell's  Act,  the  plaintiff  usually  merely  joins 
issue,  but  he  may  if  he  likes  admit  that  the  libel  appeared  in  a  newspaper, 
and  that  money  had  been  paid  into  Court ;  but  deny  that  the  libel  was 
inserted  without  actual  malice  and  without  gross  negligence,  and  that  the 
sum  of  money  paid  into  Court  is  sufficient.^  To  a  general  plea  of  payment 
into  Court  some  pleaders  reply  specially  that  the  sum  paid  in  is  insufficient ; 
but  a  mere  joinder  of  issue  will  raise  the  question  with  equal  effect.  To  a 
justification  setting  out  a  conviction,  or  to  a  plea  of  a  previous  action,  the 
plaintiff  may  reply  specially  Xul  tiel  record;  or  if  the  conviction  be  errone- 
ously stated  in  the  defence ''  the  plaintiff  may  set  it  out  correctly  in  his 
reply.  Or  to  such  a  conviction  the  plaintiff'  may  reply  on  a  pardon,^  or 
that  he  had  undergone  and  completed  his  sentence,  which  will  have  the 
same   effect,^    though    I   apprehend   neither  reply   would    be   an  answer 

1  Colonial  Assurance  Corporation,  Limited  v.  Prosser,  Weekly  Notes,  1876,  p.  55  ; 
Bitt.  122  ;  20  Sol.  J.  281  ;  60  L.  T.  Notes,  250. 

2  See  ante,  pp.  485,  6.  s  jl  W.  R.  649  ;  9  Jur.  N.  S.  580  ;  8  L.  T.  397. 
*  Ord.  XIX.  r.  21. 

6  See  Scott  v.  Stansfeld,  L.  R.  3  Ex.  220  ;  37  L.  J.  Ex.  155  ;  16  W.  R.  911  ;  18 
L.  T.  572  ;  Dawldns  t>.  Lord  Paulet,  L.  R.  5  Q.  B.  94  ;  39  L.  J.  Q.  B.  53  ;  18  W.  R. 
336  ;  21  L.  T.  584. 

6  Chadwick  v.  Herapath,  3  C.  B.  885  ;  16  L.  J.  C.  P.  104  ;  4  D.  &  L.  653  ;  Smith 
V.  Harrison,  1  F.  &  F.  565. 

7  As  in  Alexander  v.  N.  E.  Ry.  Co.  34  L.  J.  Q.  B.  152  ;  11  Jur.  N.  S.  619  ;  13  W. 
R.  651  ;  6  B.  &  S.  340. 

8  Cuddington  v.  Wilkins,  Hob.  67,  81  ;  2  Hawk.  P.  C.  c.  37,  s.  48. 

9  Leyman  v.  Latimer  and  others,  3  Ex.  D.  15,  352  ;  46  L.  J.  Ex.  765  ;  47  L.  J.  Ex. 
470 ;  25  W.  R.  751  ;  26  W.  R.  305  ;  37  L.  T.  360,  819  ;  14  Cox,  C.  C.  51. 

428 


KEJOINDER.      AMENDMENT   OF   PLEADINGS.  *  498 

if  the  -words  complained  of  were  that  the  *  plaintiff  "  was  convicted    *  498 
of  such  and  such  a  crime."     To  a  plea  of  the  Statute  of  Limita- 
tions, a  plaintiff"  may  specially  reply  absence  beyond  seas  under  the  statute 
of  Anne.^ 

To  a  counterclaim  the  plaintiff"  must  of  course  plead  as  specially  as  a 
defendant  is  compelled  to  do  to  a  statement  of  claim.^ 

The  plaintiff  may  deliver  interrogatories  with  his  reply.^  The  reply 
must  be  delivered  within  three  Aveeks  after  the  defence  has  been  received,* 
unless  the  time  be  extended. 

Rejoinder. 
A  rejoinder  is  almost  always  a  mere  joinder  of  issue.     If  it  is  not,  leave 
must  be  obtained  to  plead  it.^     There  is  an  instance  of  a  special  rejoinder, 
which  was  held  good  on  demurrer,  in  Alexander  v.  North-Eastern  Eailway 
Co.,  supj-a. 

A  rejoinder  must  be  delivered  within  four  days  after  the  receipt  of  the 
reply,  unless  the  time  be  extended  by  order  of  a  master  at  chambers,  or  by 
consent.® 

Amendment  of  Pleadings. 

The  plaintiff  may  without  leave  amend  his  claim  once  within  the  time 
limited  for  reply  and  before  reply,  or,  if  no  defence  has  been  delivered, 
then  within  four  weeks  from  the  appearance  of  the  defendant  who  has  last 
appeared ;  and  so,  also,  a  defendant  who  has  pleaded  a  set-off  or  counter- 
claim may  amend  the  same  within  the  time  limited  for  and  before  pleading 
to  the  reply ;  or,  if  there  be  no  reply,  then  within  twenty -eight  days  from 
the  filing  of  his  defence.'^  (a)  But  there  is  no  provision  enabling  a  defend- 
ant to  amend  his  defence  without  leave.  Either  party  may  with  leave 
amend  his  claim,  defence,  or  reply,  at  any  stage  of  the  proceedings.^  In 
such  case  the  order  to  amend,  if  not  acted  upon  within  the  time  limited 
therein,  or  fourteen  days  from  the  date  thereof,  becomes  void  ipso  facto.^ 
Generally,  such  leave  will  be  readily  granted  on  payment  of  costs,^"  unless 
the  party  applying  has  been  guilty  of  mala  fides,  or  desires  the  amend- 
ment merely  in  order  to  raise  a  technical  defence.^^ 

1  Ante,  i>.  456. 

2  Benbow  v.  Low,  13  Ch.  D.  553  ;  49  L.  J.  Cli.  259  ;  28  W.  R.  384  ;  42  L.  T.  14  ; 
Green  v.  Sevin,  13  Ch.  D.  589  ;  41  L.  T.  724.  »  See  post,  p.  500. 

*  Order  XXIV.  r.  1.  5  Order  XXIV.  r.  2.  6  Order  XXIV.  r.  3. 

^  Order  XXVII.  rr.  2,  3.       8  /j.  r.  1.  »  Order  XXVII.  r.   7. 

i»  JIarriott  v.  Marriott,  26  W.  R.  416  ;  Weekly  Notes,  1878,  p.  57. 

"  Tildesley  v.  Harper  (C.  A.),  10  Ch.  D.  393  ;  48  L.  J.  Ch.  495  ;  27  W.  R.  249  ;  39 
L.  T.  552  ;  CoUette  v.  Goode,  7  Ch.  D,  842  ;  47  L.  J.  Ch.  370  ;  33  L.  T.  504. 

(a)  Amendment  is    allowed   in   Maine     tiff  in  his  office  or  occupation.     Powers  v. 
after  testimony  taken,  so  as  to  charge,  e.g.     Gary,  64  Maine,  9. 
that  the  words  were  published  of  the  plain- 

429 


*  499  PPvACTICE  AND   EVIDENCE. 

*  499        *  But  it  is  a  very  different  matter  where  one  party  applies  to 

amend,  not  his  own  pleading,  but  that  of  the  opposite  party.  No 
party  may  dictate  to  the  other  how  he  shall  plead ;  he  must  satisfy  the 
master  at  chambers  or  district  registrar  that  the  passage  to  which  he  objects 
is  either  scandalous  (that  is,  both  offensive  and  at  the  same  time  irrelevant), 
or  that  it  tends  to  prejudice,  embarrass,  or  delay  the  fair  trial  of  the  action. 
Some  pleaders  appear  to  be  easily  embarrassed ;  but  it  is  no  part  of  their 
duty  to  reform  their  opponent's  pleadings.  It  is  also  much  better  policy 
to  leave  a  flagrantly  bad  specimen  of  pleading  unamended,  and  not  to 
kindly  strengthen  your  adversary's  position.  Still,  if  an  allegation  be 
really  unintelligible  or  frivolously  irrelevant,  it  should  be  struck  out.-^ 

Either  party  dissatisfied  with  the  order  made  by  the  master  or  district 
registrar  may  appeal  to  a  judge  by  summons  returnable  within  four  days.^ 
Appeals  from  any  decision  of  the  judge  at  chambers  to  the  Divisional 
Court  must  be  made  by  motion  within  eight  days  after  the  decision  ap- 
pealed against ;  ^  or  if  no  Court  sits  witliin  the  eight  days,  then  on  the  first 
day  on  which  any  Court  sits,  to  which  such  application  can  be  made.^  If 
the  last  of  the  eight  days  be  Sunday,  the  appellant  may  make  his  appeal 
on  the  following  Monday.*  Two  clear  days'  notice  of  motion  must  be 
given.®  But  unless  a  matter  of  principle  is  involved,  it  is  not  as  a  rule 
desirable  to  carry  an  appeal  thus  far ,  for  the  Court  generally  refuses 
to  interfere  with  the  discretion  of  the  judge  below  on  any  point  of 
pleading.' 

*  500        *  Where  any  party  has  amended  without  leave,  the  other  may 

within  eight  days  after  the  receipt  of  the  amended  pleading  apply 
to  the  judge  at  chambers  to  disallow  the  same,*  or  for  leave  to  plead 
further  or  amend  his  former  pleading.®  All  amended  pleadings  must  be 
marked  with  the  date  of  the  amending  order  (if  any),  and  the  day  on 
which  such  amendment  is  raade,^°  and  delivered  to  the  other  side  within 
.the  time  allowed  for  amending.^^ 

1  Cashin  v.  Cradock,  3  Ch.  D.  376 ;  25  "W.  R.  4  ;  35  L.  T.  452  ;  Smith  and  others 
■V.  Richardson,  4  C.  P.  D.  112  ;  48  L.  J.  C.  P.  140  ;  27  W.  R.  230  ;  40  L.  T.  256. 

2  Order  LIV.  r.  4  ;  Gibbons  v.  London  Financial  Association,  4  C.  P.  D.  263  ;  48 
L.  J.C.  P.  514;  27W.  R.  619. 

8 'Order  LIV.  r.  6a. 

4  R.  S.  C,  March,  1879,  r.  8  ;  Runtz  v.  Sheffield  (C.  A.),  4  Ex.  D.  150  ;  48  L.  J. 
Ex.  385  ;  40  L.  T.  539 ;  Stirling  v.  Du  Barry  (C.  A.),  5  Q.  B.  D.  65  ;  28  W.  R.  404. 

8  Taylor  v.  Jones,  1  C.  P.  D.  87  ;  45  L.  J.  C.  P.  110  ;  34  L.  T.  131  ;  and  see  Order 
LVII.  r.  3.  ^  Order  LIIL  r.  4. 

1  Golding  V.  Wharton  Saltworks  Co.,  1  Q.  B.  D.  374  ;  24  W.  R.  423  ;  34  L.  T.  474 ; 
Byrd  v.  Nunn,  7  Ch.  D.  284  ;  47  L.  J.  Ch.  1  ;  26  W.  R.  101  ;  37  L.  T.  585  ;  Huggons 
V.  Tweed,  10  Ch.  D.  359  ;  27  W.  R.  495  ;  40  L.  T.  284. 

8  Order  XXVIL  r.  4.  »  lb.  r.  5.  w  lb.  r.  9.  ^  lb.  r.  10. 

430 


DEFAULT   IN   PLEADING.      INTEEROGATORIES.  *  500 


Default  in  Pleading. 

The  plaintiff  must  deliver  his  reply  within  three  weeks  after  defence 
delivered.^  All  pleadings  subsequent  to  reply,  must  be  delivered  within 
four  days  after  delivery  of  the  previous  pleading.'-^  If  the  plaintiff  does 
not  deliver  his  reply,  or  either  party  fails  to  deliver  any  subsequent  plead- 
ing, within  the  period  allowed,  the  pleadings  will  at  its  expiration  be 
deemed  closed,  and  the  statements  of  fact  in  the  pleading  last  delivered 
admitted.^ 

And,  therefore,  if  it  be  the  defendant  that  is  in  default,  the  plaintiff 
may  at  once  give  notice  of  trial  under  Order  XXXVI.  r.  3.  If,  however, 
it  is  the  plaintiff  that  is  in  default,  the  defendant  must  wait  for  six  weeks 
after  expiration  of  the  period  allowed  for  pleading,  and  then  either  himself 
give  notice  of  trial  under  Order  XXXVI.  r.  4,  or  apply  to  a  master  at 
chambers  to  dismiss  the  action  for  want  of  prosecution,  under  r.  4a,  R.  S.  C. 
June,  1876,  r.  13.^ 

Interrogatories. 

Interrogatories  are  now  delivered  almost  as  a  matter  of  course  in  every 
action  of  libel  or  slander  where  there  is  any  dispute  as  to  the  facts.  For- 
merly leave  was  required  to  exhibit  interrogatories,  but  now  they  are 
delivered  as  of  right.  They  are  generally  administered  by  the  party  on 
whom  wiU  lie  the  main  burden  of  proof  at  the  trial,  but  often  there  are 
cross  interrogatories. 

The  plaintiff  cannot  administer  interrogatories  without  leave, 
before  the  statement  of  defence  is  delivered,  in  spite  of  the  *  express  *  501 
■words  of  Order  XXX.  r.  1 ;  for  the  defendant  may  admit  in  his 
pleading  the  very  matters  on  which  it  is  proposed  to  interrogate  him.^  So, 
too,  the  defendant  as  a  rule  cannot  interrogate  the  plaintiff  before  deliver- 
ing his  statement  of  defence.^  But  between  the  date  of  delivery  of  the 
statement  of  defence  and  the  close  of  the  pleadings  either  party  may  deliver 
interrogatories  without  leave. 

After  the  close  of  the  pleadings,  or  before  the  delivery  of  the  statement 
of  defence,  leave  must  be  obtained  to  administer  interrogatories,  and  good 
cause  must  be  shown  on  afl&davit  for  the  application.''  A  plaintiff  has  been 
allowed  to  administer  interrogatories  before  statement  of  claim  in  order  to 

1  Order  XXIV.  r.  1.  2  /j.  y.  3.  ^  Order  XXIX.  r.  12. 

4  Litton  V.  Litton,  3  Ch.  D.  793  ;  24  W.  R.  962. 

5  Meroier  v.  Cotton,  1  Q.  B.  D.  442  ;  46  L.  J.  Q.  B.  184 ;  24  W.  R.  566  ;  35  L.  T.  79. 

6  Disney  v.  Longbourne,  2  Ch.  D.  704  ;  45  L.  J.  Ch.  532  ;  24  W.  R.  663  ;  35 
L.  T.  301. 

7  Anon.,  1  Charley,  100  ;  Bitt.  4  ;  20  Sol.  J.  32  ;  60  L.  T.  Notes,  32  ;  Hawley  v. 
Reade,  Weekly  Notes,  1876,  p.  64  ;  Bitt.  130  ;  20  Sol.  J.  298  ;  60  L.  T.  Notes,  268  ; 
Ellis  V.  Ambler,  25  W.  R.  557  ;  36  L.  T.  410. 

431 


*501  PRACTICE  AND   EVIDENCE. 

ascertain  the  exact  words  of  a  libel  or  slander.  So,  too,  leave  has  in  a 
special  case  been  obtained  for  the  delivery  of  a  second  set  of  interrogatories, 
■where  the  pleadings  have  been  amended  since  the  first  set  was  delivered, 
and  such  amendments  involved  fresh  facts.  Leave  is  also  necessary  to 
administer  interrogatories  to  a  corporation  when  a  party  to  an  action ;  but 
it  is  almost  always  granted  as  a  matter  of  course.  The  party  interrogating 
is  entitled  to  select  any  officer  of  the  corporation  or  company  to  answer. 
Such  officer  need  not  and  should  not  be  made  a  party  to  the  suit.-^  If  there 
be  no  officer  of  the  company  capable  of  giving  them  the  information 
required,  then,  but  not  else,  the  party  interrogating  is  entitled  to  name 
some  ordinary  member  of  the  company,  who  is  acquainted  with  the  facts, 
who  shall  answer  the  interrogatories  ;  nor  can  such  member  refuse  to  file 

his  affidavit  in  answer  until  he  has  been  paid  his  taxed  costs  of 
*  502    answering  it.^    *  Very  often,  however,  the  paity  interrogating  leaves 

it  to  the  company  to  select  the  person  who  shall  answer  the  inter- 
rogatories, in  which  case  the  company  must  select  some  one  conversant 
with  the  facts  and  capable  of  answering  fully  and  freely.*  If  a  corporation 
elects  to  answer  by  an  officer  who  is  also  their  solicitor  in  the  action,  they 
lose  the  privilege  attaching  to  information  acquired  by  the  solicitor  for  the 
purposes  of  the  action.*  The  propriety  of  the  interrogatories  proposed  to 
be  administered  cannot  be  discussed  at  this  stage.* 

There  is  some  art  required  in  drawing  interrogatories.  It  consists  chiefly 
in  looking  rather  at  the  answer  you  may  reasonably  expect  to  obtain  than 
at  the  answer  which  you  are  instructed  ought  to  be  given  to  the  question 
you  are  putting.  The  defendant's  version  of  the  matter  must  differ  from 
the  plaintiff's  versi(5n,  and  the  object  of  interrogatories  is  to  discover  pre- 
cisely where  and  to  what  extent  they  differ.  The  question  then  should  be 
framed  so  as,  in  the  first  place,  to  elicit  if  possible  the  answer  you  desire ; 
and  at  the  same  time,  failing  that  answer,  to  get,  at  all  events,  some  definite 
statement  sworn  to,  from  which  the  party  interrogated  cannot  afterwards 

1  C.  L.  P.  Act,  1854  (17  &  18  Vict.  c.  125),  s.  51  ;  Cooke  v.  Oceanic  Steam  Co., 
"Weekly  Notes,  1875,  p.  220  ;  Bitt.  3-3  ;  20  Sol.  J.  80  ;  60  L.  T.  Notes,  68  ;  "Wilson  v. 
Church,  9  Ch.  D.  552  ;  26  W.  R.  735  ;  39  L.  T.  413. 

2  Berkeley  v.  Standard  Discount  Co.  (C.  A.),  13  Ch.  D.  97  ;  49  L.  J.  Ch.  1  ;  28 
"W,  R.  125  ;  41  L.  T.  374,  reversing  the  decision  of  Fry,  J.,  below  ;  12  Ch.  D.  295  ; 
48  L.  .J.  Ch.  797  ;  27  "W.  R.  852  ;  41  L.  T.  29. 

3  Republic  of  Costa  Rica  v.  Erlanger,  1  Ch.  D.  171  ;  45  L.  J.  Ch.  145  ;  24  "W.  R. 
151  ;  1  Charley,  111. 

*  ilayor,  &c.,  of  Swansea  v.  Quirk,  5  C.  P.  D.  lOG  ;  49  L.  J.  C.  P.  157  ;  28  W.  R. 
371  ;  41  L.  T.  758. 

5  Berkeley  v.  Standard  Discount  Co.  (Malins,  V.C),  9  Ch.  D.  643  ;  26  "W.  R.  852  ; 
overruling  the  decision  of  Lush,  J.,  at  chambers  in  Hewetson  v.  Whittington  Life 
Insurance  Soc,  Weekly  Notes  for  1875,  p.  219  ;  1  Charley,  101  ;  Bitt.  27  ;  20  Sol.  J. 
79  ;  60  L.  T.  Notee,  67. 

432 


INTERltOGATORIES.  *  502 

diverge.  Care  should  be  taken  to  leave  him  no  loophole  of  escape.  If  he 
•will  not  answer  the  question  your  way,  still  at  least  find  out  how  far  he  is 
prepared  to  go  in  the  opposite  direction. 

To  secure  this  it  is  well  to  ask  a  long  series  of  short  questions,  not  one 
long  question.  Each  additional  detail  should  be  put  in  a  question  by 
itself.  Thus  if  you  are  instructed  that  the  plaintiff  gave  evidence  in  the 
Bankruptcy  Court,  in  the  presence  of  a  IMr.  Henderson,  that  a  certain 
cheque  was  in  the  handwriting  of  the  defendant,  it  will  be  of  little  use  to 
ask  merely  :  "  Did  you  not  state  on  oath,  in  the  Bankruptcy  Court,  in  the 
presence  of  J.  Henderson,  that  the  said  cheque  was  in  the  defend- 
ant's handwriting  ] "  as  the  plaintiff  will  simply  answer  "  jS^o."  *  Nor  *  503 
will  it  avail  to  add  to  the  above  question  the  Chancery  phrase,  "  Or, 
how  otherwise  1 "  The  only  way  to  discover  precisely  what  it  is  the  plaintiff 
denies  is  to  split  the  question  up  into  several  —  "  Were  you  not  examined 
as  a  witness  in  the  Bankruptcy  Court  on  the  loth  of  May,  1880,  or  some 
other  and  what  day  1  Was  not  a  cheque  then  and  there  produced  to  you  ] 
Did  you  not  state  that  such  cheque  was  in  the  handwriting  of  the  defend- 
ant? If  nay,  in  whose  handwriting  did  you  state  the  said  cheque  to  be? 
Was  not  the  said  cheque  the  one  mentioned  in  Paragraph  4  of  the  State- 
ment of  Claim,  or  some  other,  and  what  clieque  1  Did  you  not  state  so  on 
oath?     Did  you  not  state  so  in  the  presence  of  one  John  Henderson? " 

Interrogatories  should  be  put  so  that  the  party  interrogated  can  answer 
"  Yes  "  and  "  No  "  to  them.^ 

Great  care  is  necessary  in  applying  former  decisions  as  to  interrogatories 
to  the  present  practice.  Before  the  Judicature  Act  special  leave  was  required 
to  administer  interrogatories,  and  the  judge  might  in  every  case  exercise 
his  discretion  as  to  allowing  them.  Now  either  party  has  a  right  to  admin- 
ister them,  subject  only  to  this  —  that  if  he  exhibits  interrogatories  unrea- 
sonably, vexatiously,  or  at  improper  length,  he  may  have  to  pay  the  costs 
of  them.^  Then  between  November  1st,  1875,  and  November  18th,  1878, 
the  party  interrogated  was  always  allowed  to  apply  at  chambers  to  have 
objectionable  interrogatories  struck  out ;  this  now,  as  a  rule,  he  may  not 
do ;  he  merely  refuses  to  answer  them  in  his  affidavit  in  answer.^ 

In  actions  of  slander  the  Courts  formerly  felt  a  great  reluctance  in 
allowing  any  interrogatories  at  all  to  be  administered.*  In  fact,  there  is 
only  one  instance  reported  of  such  interrogatories  being  allowed  before  the 
Judicature  Act,  and  in  that  case  ^  the  plaintiff  had  exhausted  every  other 

^  Per  Archibald,  J.,  in  Annitage  v.  Fitzwilliara  and  others,  Weekly  Notes,  1876, 
p.  56  ;  Bitt.  126  ;  20  Sol.  J.  281  ;  60  L.  T.  Notes,  251. 

2  Order  XXXI.  r.  2.  s  See  post,  p.  509. 

4  Stern  v.  Sevastopulo,  14  C.  B.  N.  S.  737  ;  32  L.  J.  C.  P.  268. 

6  Atkinson  v.  Fosbrooke,  L.  R.  1  Q.  B.  628  ;  35  L.  J.  Q.  B.  182  ;  12  Jur.  N.  S. 
810 ;  14  W.  R.  832  ;  14  L.  T.  553. 

29  433 


*  503  PRACTICE   AND   EVIDEXCE. 

channel  of  inquiry,  and  "was  unable  to  discover  what  were  the  exact 

*  504    words  the  defendant  had  uttered.     *  But  now  no  leave  is  required, 

and  the  plaintiif  administers  interrogatories  as  of  right  in  slander 
as  in  any  other  action ;  and  the  defendant  answers  them  Avithout  demur. 

But  with  libel  it  is  different ;  for  libel  is  a  crime.  To  ask,  therefore, 
whether  the  defendant  had  any  share  in  writing,  printing,  or  composing 
the  alleged  libel,  or  was  the  editor  of  the  newspaper  at  the  date  of  publica- 
tion, has  a  direct  tendency  to  criminate  the  defendant,  who  may,  therefore, 
refuse  to  answer  such  questions.  But  this  alone  does  not  satisfy  him.  To 
refuse  to  answer  on  the  express  ground  that  to  answer  might  criminate  him 
is  tantamount  to  a  confession  of  criminality ;  and  the  defendant's  endeavor, 
therefore,  has  always  been  to  prevent  such  a  question  being  put  to  him. 
In  oral  examination  it  is  well  known  that  the  witness  cannot  object  to  such 
questions  being  asked  ;  he  can  only  decline  to  answer ;  and  to  do  that  he 
must  take  his  objection  on  oath,  stating  in  open  Court  that  in  his  opinion 
the  answer  would  tend  to  criminate  him.^  But  in  the  days  when  interroga- 
tories were  still  a  novelty,  when  leave  to  exhibit  them  was  only  granted  as 
a  favor,  it  was  thought  unfair  to  the  defendant  to  permit  a  string  of  ques- 
tions to  be  asked  him  which  it  was  clear  he  was  not  bound  to  answer ;  ^ 
and  it  came  to  be  the  rule  that,  in  the  absence  of  very  special  circum- 
stanceiN"  questions  which  on  the  face  of  them  tended  to  criminate  could  not 
be  asked  ;  *  that  questions  not  clearly  criminatory  might  be  asked,  but  the 
defendant  might  refuse  to  answer  them,  if  he  stated  his  objection  on  oath 
at  the  time  of  answering.^ 

*  505         *  But,  though  this  was  the  rule  at  Common  Law,  in  Equity  the 

practice  was  different.  There  the  distinction  between  an  obvious 
and  a  latent  tendency  to  criminate  was  unknown,  though  there  was  a  rule 
against  allowing  discovery  in  aid  of  an  action  for  a  mere  personal  tort.®  All 
questions  material  to  the  issue  might  be  asked,  and  the  defendant  was  always 

1  Boyle  V.  Wiseman,  10  E.^.  647  ;  24  L.  J.  Ex.  160;  24  L.  T.  (Old  S.)  274;  25 
L.  T.  (Old  R.)  203. 

2  Tupling  V.  Ward,  6  H.  &  N.  749  ;  30  L.  J.  Ex.  222  ;  7  Jur.  N.  S.  314  ;  9  ^Y.  R. 
482 ;  4  L.  T.  20  :  Baker  v.  Lane,  3  H.  &  C.  544  ;  34  L.  J.  Ex.  57  ;  Edmunds  v. 
Greenwood,  L.  R.  4  C.  P.  70  ;  38  L.  J.  C.  P.  115  ;  17  W.  R.  142  ;  19  L.  T.  423. 

8  Inman  v.  Jenkins,  L.  R.  5  C.  P.  738  ;  39  L.  J.  C.  P.  258  ;  18  W.  R.  897  ;  22 
L.  T.  659  ;  Greenfield  v.  Reay,  L.  R.  10  Q.  B.  217  ;  44  L.  J.  Q.  B.  81 ;  23  W.  R.  732  ; 
31  L.  T.  756. 

«  Villeboisnet  v.  Tobin  and  others,  L.  R.  4  C.  P.  184;  38  L.  J.  C.  P.  146;  17 
W.  R.  322  ;  19  L.  T.  693. 

5  Osborne  v.  London  Dock  Co.,  10  Exch.  698  ;  24  L.  J.  Ex.  140  ;  Chester  v.  Wort- 
ley,  17  C.  B.  410;  25  L.  J.  C.  P.  117;  Bartlett  v.  Lewis,  12  C.  B.  N.  S.  249;  31 
L.  J.  C.  P.  230  ;  Bickford  v.  Darcy  and  Beachey,  L.  R.  1  Ex.  354  ;  14  W.  R.  900  ; 
14  L.  T.  629  ;  McFadzen  2;.  Mayor  and  Corporation  of  Liverpool,  L.  R.  3  Ex.  279  ;  16 
W.  R.  48. 

6  Glynn  v.  Houston,  1  Keen,  329. 

434 


INTERROGATORIES.  *  505 

compelled  to  answer  them  unless  he  took  the  objection  on  oath  in  his  an- 
swer. And  this  is  now  the  practice  in  all  the  divisions ;  for  by  sub-s.  1 1 
of  s.  25  of  the  Judicature  Act,  1873,  whenever  there  is  a  variance  between 
the  practice  at  Common  Law  and  at  Equity,  the  rules  of  Equity  shall  pre- 
vail.^ In  an  earlier  case,^  the  Queen's  Bench  Division,  it  is  clear,  desired 
and  intended  to  follow  the  Chancery  rule,  but  were  misled  as  to  what  precisely 
was  the  practice  in  Equity.^  It  is  now,  therefore,  clear  that  relevant  inter- 
rogatories cannot  be  set  aside  merely  because  they  tend  to  criminate ;  the 
party  interrogated  must  take  the  objection  on  oath  in  his  affidavit  in  answer.* 
The  fusion  of  Law  and  Equity  appears  also  to  have  done  away  with 
another  distinction  as  to  what  questions  could  be  asked  and  what  not.  It 
was  formerly  a  rule,  well  recognized  at  Common  Law,  that  interrogatories 
must  be  confined  to  matters  which  relate  to  the  case  of  the  party  adminis- 
tering them,  and  must  not  extend  to  matters  which  relate  exclusively  to  the 
case  of  the  opposite  party ;  though  questions  might  be  asked  as  to  any 
matter  common  to  the  case  of  both  parties.^  The  rule  was  formerly  pre- 
cise :  —  "  Put  your  own  case  to  your  opponent  by  means  of  interrogatories  ; 
but  apply  for  particulars  of  his  case."  But  in  Chancery  there 
*  was  nothing  corresponding  to  particulars.*  Tliere  the  only  way  *  506 
in  which  a  party  could  ascertain  what  was  the  case  he  had  to  meet, 
was  by  means  of  interrogatories.  And  such  information  may  still  be  so  ob- 
tained.'' And  in  Gay  v.  Labouchere,^  Cockburn,  C.J.,  asks,  "Why  should 
not  the  plaintiff  have  this  information  by  means  of  interrogatories  as  well  as 
by  particulars  1 "  and  overrules  the  distinction  that  the  answer  to  interrog- 
atories is  on  oath,  while  particulars  are  not  sworn  to,  and  can  be  at  any  time 
amended.  It  seems,  then,  that  the  Common  Law  rule  is  now  obsolete,  and 
that  instead  of  it  must  stand  the  Equity  rule  :  that  either  party  is  entitled, 
by  means  of  interrogatories,  to  ascertain  the  facts  on  which  his  opponent 
relies,  but  not  the  evidence  by  which  he  proposes  to  prove  those  facts.^ 

1  Fisher  u.  Owen  (C.  A.),  8  Ch.  D.  645  ;  47  L.  J.  Ch.  477,  681  ;  2G  W.  K.  417, 
581  ;  38  L.  T.  252,  577  ;  Allhusen  v.  Laboucliere  (C.  A.),  3  Q.  B.  D.  654  ;  47  L.  J. 
Ch.  819  ;  27  W.  R.  12  ;  39  L.  T.  207. 

2  Atherley  v.  Harvey,  2  Q.  B.  D.  524  ;  46  L.  J.  Q.  B.  518  ;  25  W.  R.  727  ;  36  L.  T. 
551. 

3  See  the  remarks  of  Cotton,  L.  J.,  in  Fisher  v.  Owen,  8  Ch.  D.  654. 

*  See  also  Webb  v.  East  (C.  A.),  5  Ex.  D.  23,  108  ;  49  L.  J.  Ex.  250;  28  AV.  R. 
229,  336  ;  41  L.  T.  715. 

5  Per  Lord  Campbell,  C.J.,  in  Carew  v.  Davies,  5  E.  &  B.  709  ;  25  L.  J.  Q.  B-  165  ; 
and  per  Cockburn,  C.J.,  in  Moor  v.  Roberts,  3  C.  B.  N.  S.  671  ;  26  L.  J.  C.  P.  246. 

6  Augustinus  v.  Nerinckx  (C.  A.),  16  Ch.  D.  13  ;  43  L.  T.  458. 

^  Saunders  v.  Jones  (C.  A.),  7  Ch.  D.  435  ;  47  L.  J.  Ch.  440  ;  26  W.  R.  226;  37 
L.  T.  395,  769.  «  4  Q.  B.  D.  206  ;  48  L.  J.  Q.  B.  279  ;  27  W.  R.  412. 

9  Ashley  v.  Taylor,  37  L.  T.  522  ;  (C.  A.)  38  L.  T.  44  ;  Commissioners  of  Sewers  v. 
Glasse,  L.  R.  15  Eq.  302  ;  42  L.  J.  Ch.  345 ;  21  W.  R.  520  ;  28  L.  T.  433,  as  ex- 
plained  in  Saunders  v.  .Tones,  supra. 

435 


*  506  PRACTICE  AND   EVIDENCE. 

Thus  you  are  not  entitled  to  see  your  adversary's  brief,  or  to  ask  him  to 
name  the  witnesses  he  means  to  call  at  the  trial.  You  may  not  ask  in 
whose  presence  such  and  such  events  occurred ;  but  you  are  entitled  to 
know  precisely  what  is  the  charge  made  against  you,  and  what  are  the 
facts  upon  which  your  opponent  intends  to  rely.^ 

One  instance  which  came  within  the  above-mentioned  Common  Law  rule 

deserves  special  notice.     The  defendant  could  formerly,  as  now,  apply  for 

particulars  of  the  special  damage  alleged  in  the  declaration ;  therefore,  it 

was  held  he  might  not  interrogate  as  to  it.     It  was  entirely  the  plaintiff's 

case.^     But  even  before  the  Judicature  Act  this   strictness  was 

*  507    abated,  and  a  defendant  was  allowed  to  interrogate  as  to  *  special 

damage,  when  his  object  was  to  ascertain  how  much  would  be  a 
reasonable  sum  to  pay  into  Court.^  And  now  there  would  appear  to  be 
no  objection  to  a  defendant's  applying  first  for  particulars  and  then  inter- 
rogating the  plaintiff  as  to  those  particulars. 

In  an  action  for  libel,  Davis  v.  Gray,*  interrogatories  were  disallowed,  the 
object  of  which  was  to  establish  special  malice  so  as  to  meet  the  defence  of 
privilege,  should  it  be  set  up.  But  the  reason  for  this  decision  is  not  clearly 
stated  in  the  report.  Even  then  there  was  no  objection  to  a  plaintiff  in- 
terrogating as  to  matter  of  reply  :  certainly  there  is  none  now. 

The  following,  therefore,  are,  with  some  diffidence,  suggested  as  the  rules 
which  now  in  a  Common  Law  action  determine  what  interrogatories  may 
be  administered  and  what  not. 

1.  Interrogatories  must  be  relevant  to  the  matter  in  issue.  Not  every 
question  which  could  be  asked  a  witness  in  the  box  may  be  put  as  an  in- 
terrogatory.^ Thus,  questions  to  credit  only  will  not  be  allowed,  although, 
of  course,  they  may  be  asked  the  party  in  cross-examination.^  Again,  no 
question  need  be  answered  which  is  not  put  bond  fide  for  the  purposes  of 
the  present  action.  Thus,  the  publisher  of  a  newspaper  must  answer  the 
interrogatory :  "  Was  not  the  passage  set  out  in  paragraph  3  of  the  State- 
ment of  Claim  intended  to  apply  to  the  plaintiff  1 "  but  he  need  not  an- 
swer the  further  question,  "  If  not,  say  to  whom  ?"  as,  if  the  passage  did 

1  Eade  and  another  v.  Jacobs  (C.  A.),  3  Ex.  D.  335  ;  47  L.  J.  Ex.  74  ;  26  W.  R. 
159  ;  37  L.  T.  621  ;  Johns  v.  James,  13  Ch.  D.  370  ;  Lyon  v.  Tweddell,  ib.  375. 

'■j'peppiatt  and  wife  v.  Smith,  33  L.  J.  Ex.  239  ;  Jourdain  v.  Palmer,  L.  R.  1  Ex. 
102  ;  35  L.  J.  Ex.  69  ;  12  Jur.  N.  S.  214  ;  14  W.  R.  283  ;  13  L.  T.  600  ;  overruling 
Wood  V.  Jones,  1  F.  &  F.  301,  where  Williams,  J.,  refused  particulars,  but  allowed  in- 
terrogatories as  to  the  names  of  the  persons  to  whom  a  slander  was  uttered. 

3  Home  V.  Hough  and  others,  L.  R.  9  C.  P.  135  ;  43  L.  J.  C.  P.  70  ;  22  W.  R.  412  ; 
Wright  V.  Goodlake,  34  L.  J.  Ex.  82.  "  30  L.  T.  418. 

6  Per  Martin,  B.,  in  Peppiatt  and  wife  v.  Smith,  33  L.  J.  Ex.  240. 

6  Baker  v.  Newton,  Weekly  Notes,  1876,  p.  8  ;  1  Charley,  107  ;  Bitt.  80  ;  20  Sol. 
J.  177  ;  60  L.  T  Notes,  157  ;  AUhusen  v.  Labouchere  (C.  A.),  3  Q.  B.  D.  654;  47 
L.  J.  Ch.  819  ;  27  W.  R.  12  ;  39  L.  T.  207. 

436 


LNTEEEOGATORIES.  *  507 

not  apply  to  the  plaintiff,  it  is  immaterial  to  whom  it  referred,  so  far  as  the 
plaintiff's  action  is  concerned.^' 

*  2.  Next,  as  we  have  seen  above,  the  party  interrogating  may  *  508 
deal  with  his  own  case,  or  with  matters  common  to  the  case  of  both 
parties,  in  full  detail.  But  he  is  entitled  to  obtain  an  outline  only  of  mat- 
ters exclusively  relating  to  the  case  of  the  party  interrogated,  and  not  the 
evidence  which  the  party  interrogated  means  to  give  at  the  trial  in  support 
of  his  allegations. 

3.  The  questions  asked  must  not  be  "  fishing ;  "  that  is,  they  must  refer 
to  some  definite  and  existing  state  of  circumstances,  not  be  put  merely  in 
the  hopes  of  discovering  something  which  may  help  the  party  interrogating 
to  make  out  some  case.  They  must  be  confined  to  matters  which  there  is 
good  ground  for  believing  to  have  occurred.  "Fishing"  interrogatories 
are  especially  objectionable  when  their  object  is  to  get  at  something  which 
may  support  a  plea  of  justification.^ 

4,  In  the  Common  Law  divisions,  at  all  events,  interrogatories  are  not 
allowed  as  to  the  contents  of  written  documents,  unless  it  is  admitted  that 
such  documents  have  been  lost  or  destroyed.^  Nor  will  interrogatories  be 
allowed,  the  object  of  which  is  to  contradict  a  written  document.*  The 
old  question  as  to  documents  which  formerly  concluded  every  set  of  inter- 
rogatories is  no  longer  allowed.^  Its  place  is  taken  by  a  summons  for  dis- 
covery of  documents.® 

If,  however,  the  party  from  whom  discovery  is  sought  does  not  in  his 
affidavit  of  documents  disclose  a  document  which  there  is  good  reason  for 
believing  was  once,  at  all  events,  in  his  possession,  then  interrogatories 
may  be  administered  asking  him  whether  he  did  not  receive  a  particular 
document  from  a  certain  person  on  a  given  day ;  whether  it  is  not  now  in 
his   possession   or   control ;  if  nay,    when  did   he   part   with  it,  and  to 

1  Wifton  V.  Brignell,  Weekly  Notes,  1875,  p.  239  ;  1  Charley,  105  ;  Ritt.  56  ;  20 
Sol.  J.  121  ;  60  L.  T.  Notes,  104.  For  further  instances  of  interrogatories  held  irrele- 
vant, see  Sivier^.  Harris,  Weekly  Notes,  1876,  p.  22  ;  Bitt.  98  ;  20  Sol.  J.  240  ;  60 
L.  T.  Notes,  213  ;  Phillips  and  another  v.  Barron  and  another,  Weekly  Notes,  1876, 
p.  54  ;  Bitt.  119  ;  20  Sol.  J.  280  ;  60  L.  T..  Notes,  249  ;  Mansfield  v.  Childerhouse,  4 
Ch.  D.  82  ;  46  L.  .J.  Ch.  30  ;  25  W.  R.  68  ;  35  L.  T.  590  ;  Sheward  v.  Earl  of  Lons- 
dale, 5  C.  P.  D.  47  ;  28  W.  R.  324  ;  42  L.  T.  54  ;  Bolckow  v.  Young,  42  L.  T. 
690. 

2  Gourley  v.  Plimsoll,  L.  R.  8  C.  P.  362  ;  42  L.  .J.  C.  P.  121  ;  21  W.  P.  683  ;  28 
L.  T.  598  ;  Buchanan  v.  Taylor,  Weekly  Notes  for  1876,  p.  73;  Bitt.  131  ;  20  Sol.  J. 
298  ;  60  L.  T.  Notes,  268. 

3  Fitzgibbon  v.  Greer,  Ir.  R.  9  C.  L.  294. 

*  Moor  V.  Roberts,  3  C.  B.  N.  S.  671  ;  26  L.  J.  C.  P.  246. 

5  Pitten  V.  Chatterburg,  Weekly  Notes,  1875,  p.  248  ;  1  Charley,  106;  Bitt.  62; 
20  Sol.  J.  139  ;  60  L.  T.  Notes,  122. 
8  Seepost,  p.  515. 

437 


*  509  PEACTICE  AND   EVIDENCE. 

*  509    "whom  1     Was  it  ever  in  his  possession  or  control  ?  ^     *  And  the  in- 

terrogatory might  continue  :  "  If  you  state  that  such  document  is 
lost  or  destroyed,  set  out  the  contents  of  the  same  to  the  hest  of  your  rec- 
ollection and  belief."  ^ 

5.  Questions  "which  tend  to  criminate  may  certainly  be  asked,  unless  they 
are  either  irrelevant  or  "  fishing "  though  the  party  interrogated  is  no  t 
bound  to  answer  them.^  That  the  interrogatories  will  tend  to  criminate 
others  is  no  objection,  if  they  be  put  bond  fide  for  the  purposes  of  the  pres- 
ent action.*  That  to  answer  them  would  expose  the  party  interrogated,  or 
third  persons,  to  civil  actions  was  never  an  objection.^ 


Striking-out  Interrogatories. 

By  the  Rides  of  November,  1878,  the  original  Rules  5  and  8  of  Ord. 
XXXI,  are  repealed,  and  the  following  rule  substituted  :  — 

5.  "  Any  objection  to  answering  any  one  or  more  of  several  interrogato- 
ries on  the  ground  that  it  or  they  is  or  are  scandalous  or  irrelevant,  or  not 
bond  fide  for  the  purpose  of  the  action,  or  that  the  matters  inquired  into  are 
not  sufficiently  material  at  that  stage  of  the  action,  or  on  any  other  ground, 
may  be  taken  in  the  affidavit  in  answer. 

"  An  application  to  set  aside  the  interrogatories  on  the  ground  that  they 
have  been  exhibited  unreasonably  or  vexatiously,  or  to  strike  out  any  in- 
terrogatory or  interrogatories  on  the  ground  that  it  or  they  is  or  are  scan- 
dalous, may  be  made  at  chambers  within  four  days  after  service  of  the 
interrogatories." 

This  rule  came  into  operation  on  Xovember  18th,  1878. 

It  will  be  observed  that  the  words  of  tlie  first  clause  are  '■'■may  6e"  only, 
but  the  judicial  interpretation  of  the  rule,  founded  no  doubt  on  practical 
convenience,  is  that  such  objections  must  be  taken  in  the  affidavit  in  answer 
and  not  otherwise ;  and  that  it  is  only  in  cases  within  the  second  clause  of 
the  rule,  that  an  application  may  be  made  to  strike  out  the  inter- 
*  510  rogatories.6  *  The  present  practice,  therefore,  is  to  dismiss  every 
summons  to  strike  out  interrogatories,  unless  they  are,  as  a 
whole,  "  unreasonably  or  vexatiously  exhibited,"  or  unless  any  one  or 
more  of  them  is  or  are  "scandalous."     All  objections  to  particular  interrog- 

'   1  Lethbridge  v.  Cronk,  44  L.  J.  C.  P.  381  ;  Jones  v.  Monte  Video  Gas  Co.  (C.  A.), 
5  Q.  B.  D.  556  ;  49  L.  J.  Q.  B.  627  ;  28  W.  R.  758  ;  42  L.  T.  639. 
2  And  see  Stein  v.  Tabor,  31  L.  T.  444. 
8  Per  Thesiger,  L.J.,  in  Fisher  v.  Owen,  8  Ch.  D.  655. 

4  M'Corquodale  v.  Bell  and  another,  W.  N.  1876,  p.  39  ;  Bitt.  Ill  ;  20  Sol.  J. 
260  ;  60  L.  T.  Notes,  232. 

6  Tetley  v.  Easton,  25  L.  J.  C.  P.  293. 

6  Gay  V.  Labouclu'ie,  4  Q.  B.  D.  206  ;  48  L.  J.  Q.  B.  279  ;  27  W.  R.  413. 
438 


INTERROGATORIES.  *  510 

atories,  or  portions  of  interrogatories,  on  the  ground  that  they  are  irrelevant, 
or  "  fishing,"  &c.,  must  be  taken  in  the  affidavit  in  answer,  and  is  no  ground 
for  any  apphcation  to  set  the  interrogatories  aside.  And  both  the  phrases 
"  unreasonable  or  vexatious  "  and  "  scandalous  "  have  special  meanings. 
Masters  at  chambers,  following  the  dictum  of  Pollock,  B.,  in  Gay  v.  La- 
bouchere,^  construe  "  unreasonable  or  vexatious  "  as  referring  to  the  time 
or  stage  in  the  cause  at  which  they  are  exhibited  ;  in  short,  that  they  are 
"  premature,"  ^  or  that  leave  has  not  been  obtained  to  administer  them 
when  leave  is  requisite.^  The  mere  fact  that  it  would  involve  great  ex- 
pense and  trouble  to  answer  the  interrogatories,  was  never  considered  in 
itself  a  sufficient  reason  for  disallowing  them.^ 

A  "  scandalous  "  interrogatory  may  be  defined  as  an  insulting  or  degrad- 
ing question,  which  is  irrelevant  or  impertinent  to  the  matters  in  issue. 
It  was  a  well-known  term  in  Chancery,  and  is  adopted  by  the  framers  of 
the  Rules.  "  It  is  the  doctrine  in  Chancery  that  nothing  is  scandalous  that 
is  strictly  relevant  to  the  merits."  ^  "  Certainly  nothing  can  be  scandalous 
which  is  relevant."  ®  Questions  which  tend  to  criminate  are  not  scandalous, 
unless  they  are  either  irrelevant  or  "  fishing," ''  and  will  not,  therefore,  be 
struck  out ;  the  party  interrogated  must  take  the  objection  on  oath  in  his 
answer. 

And  even  where  the  party  might  have  applied  to  have  the  *  in-  *  511 
terrogatory  struck  out,  he  may  still  take  the  same  objection  in  his 
answer.*  Applications  to  strike  out  particular  interrogatories  will,  therefore, 
in  future  be  rare.  But  whenever  there  is  a  good  objection  to  the  whole 
set  of  interrogatories,  the  proper  course  is  to  take  out  a  summons  to  strike 
them  out  :  e.g.,  on  the  ground  that  they  have  been  administered  to  a  cor- 
poration without  leave.®     The  party  applying  to  strike  out  interrogatories 

1  4  Q.  B.  D.  207. 

2  See  Mercier  v.  Cotton,  1  Q.  B.  D.  442  ;  46  L.  J.  Q.  B.  184  ;  24  W.  R.  566  ;  35 
L.  T.  79. 

^  For  instances  in  which  searching  interrogatories  were  considered  in  Chancery  not  to 
be  "unreasonable  or  vexatious"  prior  to  the  publication  of  this  order,  see  Reader. 
Woodroffe,  24  Beav.  421  ;  Elmer  v.  Creasy,  L.  R.  9  Ch.  69  ;  Saull  v.  Browne,  ib.  364 ; 
West  of  England  and  South  Wales  Bank  v.  Nicholls,  6  Ch.  D.  613. 

*  Macintosh  v.  G.  W.  Ry.  Co.,  22  L.  J.  Ch.  72  ;  Hall  v.  L.  &  N.  W.  Ry.  Co.,  35 
L.  T.  848. 

5  Sidney  Smith's  Chancery  Practice,  878  ;  25  L.  J.  C.  T.  197. 

6  Per  Cotton,  L.J.,  in  Fisher  v.  Owen,  8  Ch.  D.  653. 

7  Allhusen  v.  Labouchere,  3  Q.  B.  D.  654  ;  47  L.  J.  Cb.  819  ;  27  W.  R.  12  ;  39 
L.  T.  207. 

8  Fisher  v.  Owen,  8  Ch.  D.  645  ;  47  L.  J.  Ch.  477  ;  26  W.  R.  417,  581  ;  38  L.  T. 
252,  577. 

9  Carter  v.  Leeds  Daily  News  Co.,  Weekly  Notes  1876,  p.  11  ;  1  Charley,  101  ; 
Bitt.  91 ;  20  Sol.  J.,  218  ;  60  L.  T.  Notes,  196. 

439 


*  511  PRACTICE   AKD   EVIDENCE. 

must,  unless  tliey  are  altogether  an  abuse  of  the  practice  of  the  Court,  spec- 
ify those  to  -which  he  objects.'^ 

Answers  to  Interrogatories. 

An  affidavit  in  answer  to  interrogatories  must  be  filed  -within  ten  days 
after  their  delivery,  unless  a  master  or  district  registrar  allow  further  time. 
The  answer  is  now  very  frequently  drawn  by  counsel.  It  must  be  written 
or  printed  bookwise,  and  filed  at  the  Central  Office,  with  a  note  appended, 
showing  on  whose  behalf  it  is  filed.^ 

Any  party  may  use,  in  evidence  at  the  trial,  any  one  or  more  of  the  an- 
swers of  the  opposite  party  Avithout  putting  in  the  whole,  but  the  judge 
may  direct  any  others  to  be  put  in.^ 

The  affidavit  in  answer  to  interrogatories,  like  all  other  affidavits,  should 
be  made  in  the  first  person,  and  should  state  the  description  and  true  place 
of  abode  of  the  deponent.  It  should  be  divided  into  paragraphs  numbered 
consecutively.  One  paragraph  should  be  devoted  to  each  interrogatory, 
dealing  with  it  specifically.  It  is  quite  admissible  to  answer  "  Yes "  or 
"  Xo  "  simply,  oidy  the  deponent  should  carefully  define  how  much  he  is 
thus  admitting  or  denying.  So,  too,  it  is  quite  admissible  to  say  "  I  do 
not  know,"  where  the  matter  is  clearly  not  within  the  deponent's  own 
knowledge.  The  deponent  is  not  bound  to  procure  information  for  the 
purpose  of  answering.*  But  if  the  deponent  has  received  any  in- 
*  612  formation  on  *the  point  from  others,  he  should  state  it  with  the 
prefix  "  I  am  informed  and  believe,"  and  not  aver  it  as  a  fact.^  If 
the  affidavit  exceed  ten  folios,  it  must  be  printed.^ 

Any  objection  to  answering  any  interrogatory  on  the  ground  that  it  is 
scandalous  or  irrelevant,  or  not  bond  fide  for  the  purpose  of  the  action,  or 
that  the  matters  inquired  into  are  not  sufficiently  material  at  that  stage  of 
the  action,  or  on  any  other  ground  ejusdeni  generis,  must  be  taken  in  the 
affidavit  in  answer.'' 

Any  other  objection  which  might  be  ground  for  striking  out  the  inter- 
rogatory may  also  be  taken  in  the  affidavit  in  answer.  The  party,  by  not 
applying  at  chambers,  in  no  Avay  waives  the  objection.     The  doubt  raised 

1  Allliusen  v.  Labouchere  (C.  A.),  xnpra. 

2  See  Order  XXXVII.  rr.  3  a,  b,  c,  d,  c,f,g;  R.  S.  C,  April,  1880,  rr.  12-18. 

3  Order  XXXI.  r.  23. 

4  Per  Brett,  J.,  in  Phillips  v.  Routh,  L.  R.  7  C.  P.  287. 

5  The  Minnehaha,  L.  R.  3  A.  &  E.  148  ;  19  W.  R.  304  ;  23  L.  T.  747.  As  to  a  cor- 
poration, see  ante,  p.  501. 

6  Order  XXXI.  r.  7. 

7  Order  XXXI.  r.  5,  R.  S.  C.  Nov.  1878  ;  Gay  v.  Labouchere,  4  Q.  B.  D.  206  ;  48 
L.  J.  Q.  B.  279  ;  27  W.  R.  413. 

440 


INTERROGATORIES.  *  512 

as  to  this  point  by  Baggallay,  L.J.,  in  Saunders  v.  Jones,^  is  now  definitely 
overruled  by  Fisher  v.  Owen.^ 

Such  objections  are  usually  taken  in  the  folloTving  form  : — 

1.  "I  object  to  answer  the  9th  and  10th  interrogatories  on  the  ground 
that  they  are  irrelevant  and  are  not  put  bond  fide  for  the  purposes  of  this 
action." 

Or  the  party  interrogated  may  pass  over  the  question  altogether,  where 
it  is  clearly  irrelevant.^  It  is  not  wise,  however,  to  treat  the  whole  of  an 
interrogatory  thus  with  silent  contempt ;  but  there  are  often  little  side 
questions  not  going  to  the  main  purpose  of  the  interrogatory  which  may  be 
thus  passed  over  if  irrelevant. 

2.  "  I  object  to  name  my  witnesses."  "  I  object  to  state  the  evidence 
by  which  I  intend  to  establish  the  facts  set  out  in  paragraphs  4,  5,  G  of  my 
Statement  of  Defence." 

3.  "  I  object  to  answer  the  5th  interrogatory  on  the  ground  that  it  is  a 
fishing  interrogatory,  put  for  the  purpose  of  making  out  some  case  under 
the  defendant's  plea  of  justification." 

4.  "  I  object  to  state  the  contents  of  a  written  document ; "  or,  "  The 
said  document  when  produced  will  be  the  best  evidence  of  its  own  con- 
tents." 

*  This  being  an  objection  of  law,  it  is  not  essential  to  expressly  *  513 
state  it.* 

5.  "  In  answer  to  the  5th  interrogatory,  I  say  that  the  said  interrogatory, 
if  answered,  would  tend  to  criminate  me,  wherefore  I  respectfully  decline 
to  answer  the  same  ;  "  or,  "  wherefore  I  humbly  submit  that  I  am  not  bound 
to  make  any  further  or  other  answer  to  the  same." 

This  answer  (except  in  one  case)  is  conclusive ;  and  it  is  idle  for  the 
party  interrogating  to  argue  that  he  does  not  see  how  the  question  can  pos- 
sibly criminate  the  deponent,  if  the  deponent  swears  positively  it  will. 
But  by  statute  an  exception  has  been  created.  Section  19  of  the  6  &  7 
Will.  IV.  c.  76,  was  re-enacted  by  the  32  &  33  Vict.  c.  24,  sched.  2,  while 
other  sections  were  repealed  by  sched.  1.  It  therefore  remains  in  force,  al- 
though subsequently  the  whole  original  Act  was  repealed  by  the  33  &  34 
Vict.  c.  99.  It  nms  as  follows  :  "  If  any  person  shall  file  any  bill  in  any 
Court  for  the  discovery  of  the  name  of  any  person  concerned  as  printer, 
publisher,  or  proprietor  of  any  newspaper,  or  of  any  matters  relative  to  the 
printing  or  publishing  of  any  newspaper,  in  order  the  more  eifectually  to 
bring  or  carry  on  any  suit  or  action  for  damages  alleged  to  have  been  sus- 
tained by  reason  of  any  slanderous  or  libellous  matter  contained  in  any  such 

1  7  Ch.  D.  435  ;  47  L.  J.  Ch.  440  ;  26  W.  R.  226  ;  37  L.  T.  395,  769. 

2  8  Ch.  D.  645  ;  47  L.  J.  Ch.  477,  681  ;  26  W.  R.  417,  581  ;  38  L.  T.  252,  577. 

3  Church  V.  Perry,  36  L.  T.  513. 

*  Smith  V.  Berg,  25  W.  R.  606  ;  36  L.  T.  471. 

441 


*613  PRACTICE  AND   EVIDENCE. 

newspaper  respecting  such  person,  it  shall  not  be  lawful  for  the  defendant 
to  plead  or  demur  to  such  bill,  but  such  defendant  shall  be  compellable  to 
make  the  discovery  required ;  provided  always,  that  such  discovery  shall 
not  be  made  use  of  as  evidence  or  otherwise  in  any  proceeding  against  the 
defendant,  save  only  in  that  proceeding  for  which  the  discovery  is  made." 
But  before  the  Judicature  Act  it  was  held  that  this  section  was  confined  to 
a  bill  for  discovery  in  equity,  and  was  not  incorporated  by  the  C.  L.  P. 
Act,  1854,  so  as  to  apply  to  interrogatories  at  Common  Law.  It  followed 
that  if  the  defendant  answered  such  interrogatories,  his  answers  could  have 
been  used  against  him  in  a  criminal  proceeding.  The  Court  therefore  re- 
fused to  order  the  defendant  to  give  the  required  information,  he  having 
objected  on  oath  to  answer  the  interrogatories,  and  this,  although  by  going 
into  Equity  the  plaintiff  could  have  compelled  the  defendant  to  an- 
swer.^ 
*  514  *  Hence  a  plaintiff  was  compelled  to  file  a  bill  for  discovery  in 
Equity  to  obtain  this  information,  a  cumbrous  and  expensive  pro- 
ceeding. There  is  only  one  instance  reported  in  which  a  plaintiff  availed 
himself  of  the  privilege.^  But  directly  the  Judicature  Act  came  into  oper- 
ation, every  division  of  the  High  Court  of  Justice  was  empowered  to  grant 
all  equitable  remedies,  and  to  exercise  all  powers  formerly  possessed  by  the 
Court  of  Chancery.^  The  principal  object  of  the  fusion  of  law  and  equity 
was  to  avoid  all  circuity  and  multiplicity  of  legal  proceedings.  Hence  as 
early  as  November  7th,  1875,  Lush,  J.,  in  Ramsden  v.  Brearley,*  decided 
that  the  following  interrogatory  was  allowable,  and  could  not  be  struck 
out :  —  "Were  you,  on  the  22nd  of  JSTovember,  1874,  the  printer  or  pub- 
lisher, or  both,  of  the  Standard  newspaper] "  And  his  lordship  decided  that 
the  protection  accorded  by  the  concluding  proviso  of  the  s.  19  of  6  &  7 
Will.  4,  c.  76,  would  attach  to  the  defendant's  answers,  which  therefore 
cannot  be  used  against  the  defendant  in  any  other  proceeding.  To  answer 
such  an  interrogatory  cannot  therefore  tend  to  criminate  the  defendant. 
This  decision  was  followed  by  Archibald,  J.,  in  Carter  v.  Leeds  Daily 
News  Co.,  and  Jackson.^ 

So,  too,  in  Lefroy  v.  Burnside,®  the  defendant  in  an  action  for  libel,  the 
alleged  proprietor  of  a  newspaper,  was  served  with  interrogatories  by  the 
plaintiff  inquiring,  inter  alia,  whether  he  was  not  such  proprietor.  This 
interrogatory  the  defendant  in  his  answer  declined  to  answer,  on  the  ground 

1  Bowden  v.  Allen,  39  L.  J.  C.  P.  217  ;  18  W.  R.  695  ;  22  L.  T.  342. 

2  Dixon  V.  Enoch,  L.  R.  13  Eq.  394  ;  41  L.  J.  Ch.  231  ;  20  W.  R.  359  ;  26  L.  T. 
127,  ^  Ss.  16,  24. 

*  33  L.  T.  322  ;  Weekly  Notes,  1875,  p.  199  ;  1  Charley,  96  ;  Bitt.  Addenda  ;  20 
Sol.  J.  30. 

6  Weekly  Notes,  1876,  p.  11  ;  1  Charley,  101  ;  Bitt.  91  ;  20  Sol.  J.  218  ;  60  L.  T. 
Notes,  196,  post,  p.  620.  6  4  L.  R.  (Ir.)  340  ;  41  L.  T.  199  ;  14  Cox,  C.  C.  260. 

442 


FTJRTHER  AND   BETTER   ANSWERS.  *  514 

that  it  might  tend  to  criminate  him  in  certain  criminal  proceedings  which 
had  been  commenced  against  him  by  the  same  plaintiff,  and  were  then 
actually  pending.  On  summons  by  the  plaintiff  to  compel  further  answer 
to  this  interrogatory,  the  Exchequer  Division  in  Ireland  held  that  it 
must  be  answered;  inasmuch  as  s.  19  of  the  6  &  7  Will.  IV.  c.  7G,  was 
still  in  force,  and  was  by  sect.  24,  subs.  7,  of  the  Judicature  Act,  1873, 
made  enforceable  by  interrogatories  in  an  action  in  a  Common  Law 
Division.-' 

*  But  it  must  be  remembered  that  s.  19  of  6  &  7  Will.  lY.  c.  76,    *  515 
applies  only  to  the  "  printer,  publisher,  or  proprietor  "  of  a  news- 
paper.    A  defendant  may  therefore  object  on  the  ground  of  criminality  to 
answer  any  interrogatory  asking  whether  he  is  the  editor  of  the  paper,^  or 
whether  h^  is  the  author  of  the  alleged  libel.^ 


Further  and  Better  Answers. 

If  the  answers  are  insufficient  or  evasive,  a  summons  should  be  taken 
out  calling  on  the  deponent  to  show  cause  why  he  should  not  within  two 
days  make  and  file  a  further  and  better  affidavit  in  answer.  The  summons 
should  specify  the  interrogatories  or  parts  of  interrogatories  to  which  a 
better  answer  is  required,*  And  it  should  be  taken  out  promptly,  within 
a  reasonable  time  after  the  answers  are  delivered.^  The  summons  may  ask 
in  the  alternative  that  the  deponent  be  examined  vivd  voce  before  a  Master.^ 
Should  the  deponent  have  taken  the  objection  that  he  is  asked  as  to  the 
contents  of  a  written  document,  the  party  interrogating  may  set  out  on  affi- 
davit facts  showing  a  strong  probability  that  the  document  has  been  lost  or 
destroyed ;  and  then  on  the  hearing  of  a  summons  for  better  answers,  the 
judge  may  order  the  deponent  to  state  his  recollection  of  its  contents,  on 
his  opponent  undertaking  not  to  use  such  answer  at  the  trial  until  the  judge 
shall  be  satisfied  that  it  was  in  fact  lost  or  destroyed."'' 

1  See  post,  p.  619.  2  Carter  v.  Leeds  Daily  News  &  Jackson,  mpra. 

8  Wilton  V.  Biignell,  Weekly  Notes,  1875,  p.  239  ;  1  Charley,  105 ;  Bitt.  56  ;  20 
Sol.  J.  121  ;  60  L.  T.  Notes,  104.  And  see  M'Loughlin  v.  Dwyer  (1),  Ir.  R.  9  C.  L. 
170. 

4  Church  V.  Perry,  36  L.  T.  513  ;  Chesterfield  Colliery  Co.  v.  Black,  24  W.  R.  783  ; 
Weekly  Notes,  1876,  p.  204  ;  Anstey  v.  N.  &  S.  Woolwich  Subway  Co.,  11  Ch.  D.  439  ; 
48  L.  J.  Ch.  776  ;  27  W.  R.  575  ;  40  L.  T.  393. 

6  Lloyd  V.  Morley,  5  L.  R.  (Ir.)  74.  ^  Order  XXXI.  r.  10. 

''  Wolverhampton  New  Waterworks  Co.  v.  Hawksford,  5  C.  B.  N.  S.  703  ;  28  L.  J. 
C.  P.  198. 

443 


515  PRACTICE   AND   EVIDEXCE. 


Discovery  of  Documents. 

Either  party  may,  under  Order  XXXI.  r.  12,  without  filing  any 

*  516    affidavit,  or  naming  any  particular  document,^  *  apply  by  summons 

to  a  Master  at  Chambers  for  an  order  directing  any  other  party  to 
the  action  to  make  discovery  on  oath  of  the  documents  which  are  or  have 
been  in  his  possession  or  power,  relating  to  any  matter  in  question  in  the 
action,  or  stating  what  he  knows  as  to  the  custody  they  or  any  of  them 
are  in. 

A  Master  at  Chambers  may  at  any  time  during  the  pendency  of  any 
action  or  proceeding,  order  the  production  by  any  party  thereto  on  oath  of 
such  of  the  documents  in  his  possession  or  power  relating  to  any  matter  in 
question  in  such  action  or  proceeding,  as  the  master  shall  think  right ;  and 
may  deal  with  such  documents  when  produced  in  such  manner  as  shall 
appear  just. ^  Except  under  special  circumstances,  which  must  be  set  out 
on  affidavit  if  they  exist,*  the  plaintiff  cannot  have  discovery  until  he  has 
delivered  his  claim.'*  Xor  can  the  defendant  until  he  has  delivered  his 
statement  of  defence.^ 

The  Courts  of  Common  Law  used  formerly,  when  discovery  was  only 
granted  as  a  favor,  to  refuse  to  assist  a  defendant  to  obtain  evidence  in 
support  of  a  plea  of  justification,  on  the  ground  that  he  should  not  have 
pubhshed  the  charge  till  he  was  in  a  position  to  prove  its  truth.  Thus 
where  a  shareholder  in  a  joint-stock  company  published  and  justified  a  libel 
imputing  insolvency  to  the  company,  he  was  held  to  be  not  entitled  to  in- 
spect the  books  of  the  company.®  But  in  equity  it  appears  that  a  defend- 
ant, in  an  action  of  libel  was  allowed  precisely  the  same  discovery  as  a 
defendant  in  any  other  suit,  and  that  although  he  had  pleaded  a  justifica- 
tion.'^    And  now  the  Chancery  rules  govern  discovery  in  all  Divi- 

*  517    sions.^     *  But  it  may  still  be  questioned  whether  such  discovery 

should  be  allowed  till  after  full  particulars  of  such  justification  have 

1  Bitt.  44.  2  7j.  r.  H. 

8  Union  Bank  of  London  v.  Manby,  13  Ch.  D.  239  ;  49  L.  J.  Ch.  1G6  ;  28  W.  E. 

23  ;  41  L.  T.  393. 

*  Cashin  v.  Cradock,  2  Ch.  D.  140  ;  25  W.  R.  4  ;  34  L.  T.  52  ;  Davis  v.  WiUiams, 
13  Ch.  D.  550  ;  28  W.  E.  223. 

6  Hancock  v.  Guerin,  4  Ex.  D.  3  ;  27  "W.  R.  112  ;  Egremont  Burial  Board  v.  Egre- 
mont  Iron  Ore  Co.,  14  Ch.  D.  158  ;  49  L.  J.  Ch.  623  ;  28  W.  E.  594  ;  42  L.  T.  179  ; 
Webster  v.  Whewall,  15  Ch.  D.  120  ;  49  L.  J.  Ch.  704  ;  28  W.  E.  951  ;  42  L.  T.  868. 

6  Metropolitan  Saloon  Omnibus  Co.  v.  Hawkins,  4  H.  &  N.  87,  146  ;  28  L.  J.  Ex. 
201  ;  5  Jur.  N.  S.  226  ;  7  W.  E.  265  ;  32  L.  T.  (Old  S.)  281. 

^  Per  Sir  John  Leach,  V.C,  in  Thorp  v.  Macaulay,  5  Madd.  230  ;  and  see  Hare  on 
Discovery,  p.  116. 

8  Anderson  v.  Bank  of  British  Columbia  (C.  A.),  2  Ch.  D.  644  ;  45  L.  J.  Ch.  449  ; 

24  W.  E.  724  ;  35  L.  T.  76. 

444 


DISCOVERY  OF   DOCUMENTS.  *  517 

been  delivered.  A  plaintiff  was  always  allowed  discovery  and  inspection 
of  all  documents  in  the  possession  of  the  defendant  which  would  help  him 
to  rebut  the  justilication.^ 

The  party  against  whom  the  order  for  discovery  is  made  must  make  an 
affidavit,  describing  all  the  documents  material  to  the  matters  in  dispute, 
which  are,  or  have  been,  in  his  jDOSsession,  with  sufficient  particularity  to 
identify  them.^  He  must  also  specify  which,  if  any,  he  objects  to  produce,^ 
and  on  what  grounds  he  so  objects."*  "  Everything  which  will  throw  light 
on  the  case  is  prmi /aa'e  subject  to  inspection."^  Every  material  docu- 
ment must  be  produced,  unless  the  party  objecting  to  produce  it  can  show 
it  to  be  privileged  :  the  party  seeking  discovery  has  a  right  to  its  produc- 
tion; the  matter  is  not  in  the  discretion  of  the  Master  or  Judge.®  What 
documents  are  privileged  from  production  will  be  ilecided  by  the  rules 
formerly  prevailing  in  the  Court  of  Chancery.''  There  are  four  possible 
grounds  on  which  production  may  be  refused  : 

(1.)  That  the  documents  required  to  be  produced  relate  solely  to  the 
party's  own  title  to  real  property.^ 

(2.)  That  the  documents  were  prepared  with  a  view  to  the  present 
action,  and  were  called  into  existence  solely  for  tlie  purposes  of  the 
party's  own  case.  Thus  counsel's  opinion,  all  *  briefs,  draft  plead-  *  518 
iugs,  jfec,  are  privileged,  but  not  counsel's  indorsement  on  the 
outside  of  his  brief.®  So  are  all  papers  prepared  by  any  agent  of  the 
party  for  the  use  of  his  solicitor  for  the  purposes  of  the  action,  provided 
such  action  be  then  commenced,  or  at  least  imminent.'"'     But  discovery 


1  Collins  V.  Yates  and  another,  27  L.  J.  Ex.  150. 

2  1  Charley,  109.  3  Order  XXXI.  r.  13. 

4  Gardner  v.  Irwin,  4  Ex.  D.  49  ;  48  L.  J.  Ex.  223 ;  27  W.  R.  442  ;  40  L.  T.  357. 

6  Per  Blackburn,  J.,  in  Hutchinson  v.  Glover,  1  Q.  B.  D.  141  ;  45  L.  J.  Q.  B.  120  ; 
24  W.  R.  185  ;  33  L.  T.  605,  834. 

6  Bustros  V.  White  (C.A.),  1  Q.  B.  D.  423  ;  45  L.  J.  Q.  B.  642  ;  24  "W.  R.  721 ;  34 
L.  T.  835. 

T  Judicature  Act,  1873,  s.  25,  siibs.  11  ;  Anderson  v.  Bank  of  British  Cohimbia, 
(C.  A.)  2  Ch.  D.  644  ;  45  L.  J.  Ch.  449  ;  24  W.  R.  624  ;  35  L.  T.  76. 

8  As  to  this,  see  Lake  and  another  v.  Pooley,  "Weekly  Notes,  1876,  p.  54  ;  Bitt.  121; 
20  SoL  J.  280  ;  60  L.  T.  Notes,  250  ;  New  British  Co.  v.  Peed,  Weekly  Notes,  1878, 
p.  52  ;  2G  W.  R.  354  ;  Fortcscue  v.  Fortescne,  24  W.  R.  945  ;  34  L.  T.  G47  ;  Egrc- 
niont  Burial  Board  v.  Egremont  Iron  Ore  Co.,  14  Ch.  D.  158  ;  49  L.  J.  Ch.  623  ;  28 
W.  R.  504  ;  42  L.  T.  179. 

9  Walsham  v.  Stainton,  2  H.  &  M.  1  ;  12  W.  I!.  199  ;  Nicholl  v.  Jones,  2  H.  &  M. 
688  ;  13  W.  R.  451. 

10  M'Corquodale  and  another  v.  Bell  and  another,  1  C.  P.  D.  471  ;  45  L.  J.  C.  P. 
329  ;  24  W.  R.  399  ;  35  L.  T.  261  ;  English  v.  Tottie,  1  Q.  B.  D.  141  ;  45  L.  J.  Q.  B. 
133  ;  24  W.  R.  393  ;  33  L.  T.  724  ;  Southwark  and  Vauxhall  Water  Co.  v.  Quick,  3 
Q.  B.  D.  315  ;  47  L.  J.  Q.  B.  258  ;  26  W.  R.  328,  341  ;  38  L.  T.  28  ;  The  Theodor 
Kdrncr,  3  P.  D.  162  ;  47  L.  J.  P.  &  M.  85 ;  38  L.  T.  818  ;  Martin  v.  Butchard,  36  L. 

445 


*  518  PRACTICE   AND   EVIDENCE. 

may  be  had  of  proceedings  in  a  former  suit  relating  to  the  same  subject' 
matter.^  Xo  privilege  can  be  claimed  for  private  letters  written  to  the 
party  by  a  stranger  to  the  suit,  even  though  they  are  expressed  to  be  writ- 
ten in  confidence,  and  the  writer  forbids  their  production.^  That  letters 
are  privileged  in  the  special  sense  in  which  that  term  is  used  in  actions  of 
defamation  {i.e.,  that  the  occasion  on  Avhich  they  were  written  renders 
them  not  actionable  imless  the  plaintiff  can  prove  express  malice)  is  no 
ground  for  refusing  to  produce  them  :  they  are  not  privileged  from  inspec- 
tion.^ 

(3.)  The  tliird  ground  of  privilege  is  that  the  documents,  if  produced, 
would  tend  to  criminate  the  party  producing  them.  But  this  objection 
(as  in  the  case  of  interrogatories)  can  only  be  taken  by  the  party  himself 
and  on  oath.  Thus,  in  an  action  to  recover  damages  for  a  libel,  alleged 
by  the  plaintiff  to  be  contained  in  two  letters  written  by  the  defendant 
to  Lord  Eosslyn,  the  plaintiff  administered  interrogatories  to  the  defend- 
ant, who  in  his  answer  admitted  that  he  had  written  two  letters 

*  519    to    Lord  *  Eosslyn   on  specified   dates,  and  that  copies  of  such 

letters  were  in  his  possession.  On  a  summons  before  the  Master 
for  inspection  of  these  copies,  an  objection  Avas  raised  by  the  defendant 
that  such  inspection  might  expose  him  to  criminal  proceedings  for  libel. 
The  Master  thereupon  refused  to  order  inspection,  but  Kelly,  C.  B.,  and 
Stephen,  J.,  subsequently  reversed  the  decision  of  the  Master,  and  granted 
an  order  to  inspect.  The  decision  of  the  Exchequer  Division  was  affirmed 
in  the  Court  of  Appeal,  where  it  was  held  that  if  the  defendant  could  pro- 
tect himself  from  production  at  all,  it  could  only  be  by  his  oath  that  the 
production  would  expose  him  to  criminal  proceedings.^ 

This  decision  overrules  Hill  v.  Campbell ;  ^  a  case  which  was  indeed 
already  practically  overruled  by  Fisher  v.  Owen.® 

(4.)  The  fourth  excuse  is  on  the  ground  of  public  policy  and  convenience. 
This  can  only  arise  where  one  party  to  the  suit  is  officially  in  possession  of 
State  documents  of  importance.  If  the  defendant  be  a  subordinate  officer 
of  a  public  department  sued  in  his  official  capacity,  he  cannot  claim  privi- 
lege on  the  ground  of  public  policy ;  production  can  only  be  refused  on 

T.  732  ;  Friend  v.  London,  Chatham,  and  Dover  Eailway  Co.,  (C.  A.)  2  Ex.  D.  437  ; 
■1(3  L.  J.  Ex.  G9C  ;  25  W.  E.  735  ;  3G  L.  T.  739. 

1  Richards  v.  Morgan,  4  B.  &  S.  641  ;  33  L.  J.  Q.  B.  114  ;  12  W.  R.  162  ;  9  L.  T. 
662  ;  Hutchinson  v.  Glover,  1  Q.  B.  D.  138  ;  45  L.  J.  Q.  B.  120  ;  24  W.  R.  185  ;  33 
L.  T.  605. 

2  Hopkinson  v.  Lord  Burghley,  L.  R.  2  Ch.  447  ;  36  L.  J.  Ch.  504  ;  15  W.  R.  543  ; 
Slade  V.  Tucker,  14  Ch.  D.  824  ;  49  L.  J.  Ch.  644  ;  28  W.  R.  807  ;  43  L.  T.  49. 

3  Webb  V.  East,  (C.  A.)  5  Ex.  D.  23,  108  ;  49  L.  J.  Ex.  250  ;  28  W.  R.  229,  336  ; 
41  L.  T.  715.  *  Webb  v.  East,  siqn-a. 

6  L.  R.  10  C.  P.  222  ;  44  L.  J.  C  P.  97  ;  23  W.  R.  336  ;  32  L.  T.  59. 
6  (C.  A.)  8  Ch.  D.  645  ;  47  L.  J.  Ch.  681  ;  26  W.  R.  581  ;  38  L.  T.  252,  577. 
44G 


FURTHEll   AND   BETTER   AFFIDAVIT,    ETC.  *  519 

that  ground  by  the  head  of  a  departmeut.^  Eut  if  it  be  shown  to  tlie 
Court  that  the  mind  of  some  responsible  person  has  been  brought  to  bear 
upon  the  question,  the  objection  will  be  upheld.^ 

Further  and  Belter  Affidavit. 

An  affidavit  of  documents  which  omitted  the  words  "  and  never  have 
had "  would  be  deemed  an  insufficient  compliance  with  the  order,  and  a 
further  and  better  affidavit  will  be  ordered.^  So  if  the  affidavit  does  not 
state  what  the  defendant  had  done  Avith  the  documents  which  he  admits 
were  formerly  in  his  possession.'*  But  if  an  affidavit  of  documents  be 
drawn  up  in  proper  form,  it  is  as  a  rule  conclusive. 

*  N'o  affidavit  in  reply  thereto  will  be  permitted.  Applications  *  520 
for  a  further  and  better  affidavit  are  discouraged.  Still,  if  it  appears 
from  the  affidavit  of  documents  itself,  or  from  any  admission  on  the  plead- 
ings of  the  party  making  it,  or  from  the  documents  mentioned  therein,  that 
it  is  insufficient,  a  further  affidavit  will  be  ordered.''  Otherwise  if  dis- 
covery be  wrongfully  withheld,  the  party  seeking  discovery  must  administer 
interrogatories.^ 

Inspection  of  Documents, 

Every  party  to  an  action  or  other  proceeding  may,  at  or  before  the 
hearing,  give  notice  in  writing  to  any  other  party,  in  whose  pleadings  or 
affidavits  reference  is  made  to  any  document,  to  produce  such  document  for 
inspection.  Such  notice  should  be  in  Form  No.  10,  Jud.  Act,  1875,  App. 
B.  Any  party  not  complying  with  such  notice  shall  not  afterwards  put 
such  document  in  evidence  on  his  behalf  in  such  action,  unless  he  satisfy 
the  Court  that  it  relates  only  to  his  own  title,  he  being  a  defendant,  or  that 
he  had  some  sufficient  cause  for  not  complying  with  such  notice.'' 

The  party  to  whom  such  notice  is  given  must,  within  two  days  from  the 
receipt  thereof,  if  all  the  documents  therein  referred  to  have  been  set  forth 
by  him  in  his  affidavit  of  documents,  or  within  four  days,  if  any  of  the 
documents  referred  to  in  such  notice  have  not  been  set  forth  by  him  in 

1  Beatson  v.  Skene,  5  H.  &  N.  838  ;  29  L.  J.  Ex.  430  ;  6  Jur.  N.  S.  780  ;  2  L.  T. 
378,  jtost,  p.  535. 

2  Kain  v.  Farrer,  37  L.  T.  469  ;  W.  N.  1877,  p.  266. 
8  Wagstaffe  v.  Anderson  and  others,  39  L.  T.  332. 

*  Per  Lush,  J.,  1  Charley,  109  ;  Bitt.  24  ;  60  L.  T.  Notes,  66. 
6  Welsh  Steam  Colliery  Co.  v.  Gaskell,  36  L.  T.  352  ;  Johnson  v.  Smith,  25  W.  R. 
539  ;  36  L.  T.  741 ;  Appleby  v.  Waring,  15  L.  J.  Notes  of  Cases  (1880),  p.  125. 

6  Jones  V.  Monte  Video  Gas  Co.,  (C.  A.)  5  Q.  B.  1).  556  ;  49  L.  J.  Q.  B.  627  ;  28 
W.  R.  758  ;  42  L.  T.  639. 

7  Order  XXXI.  r.  14.  As  to  which,  see  Webster  v.  Whewall,  15  Ch.  D.  120  ;  49 
L.  J.  Ch.  704  :  28  W.  R.  951  ;  42  L.  T.  868. 

447 


*  520  PRACTICE   AND   EVIDENCE. 

sucli  affidavit,  give  notice  to  the  party  desiring  inspection,  stating  a  time 
"vvithin  three  days  from  delivery  thereof  at  which  the  documents,  or  such 
of  them  as  he  does  not  object  to  produce,  may  be  inspected  at  the  office  of 
his  solicitor,  and  stating  which  (if  any)  of  the  documents  he  objects  to 
produce,  and  on  what  ground.^  Such  counter-notice  should  be  in  Form 
11,  Jud.  Act,  1875,  App.  B.  If  he  omit  to  give  notice  of  time  for  inspec- 
tion, or  object  to  give  inspection,  the  party  desiring  it  may  apply  to 

*  521    a  j\Iaster  for  an  order  to  inspect  documents  which  it  *  will  be  suf- 

ficient for  him  to  serve  on  the  solicitor  of  the  objecting  party. '^  If, 
however,  the  documents  desired  to  be  inspected  have  not  been  discloseil  or 
referred  to  in  the  affidavits  or  pleadings  of  the  party  against  Avhom  tlie 
application  is  made,  such  application  must  be  founded  upon  an  affidavit 
showing  of  what  documents  inspection  is  sought,  that  the  party  a])plying 
is  entitled  to  inspect  them,  and  his  belief  that  they  are  in  the  possession 
or  power  of  the  other  party.^ 

But  the  application  generally  made  at  this  stage  is  for  inspection  of  those 
documents  which  the  party  holding  them  refuses  to  produce.  It  is  thus 
that  the  claim  of  privilege  set  up  is  tested.  Very  often,  on  such  a  sum- 
mons, the  documents  are  shown  to  the  Judge  by  consent  in  order  to  take 
his  decision  after  he  has  read  them.  Where  this  is  done,  no  appeal  lies 
from  his  order.*  If  this  is  not  done,  then  the  only  question  is,  whether 
the  defendant  has  in  his  affidavit  said  enough  about  the  documents  in 
dispute  to  entitle  him  to  refuse  production.^ 

Any  description  is  sufficient  which  identifies  the  documents  sufficiently 
to  enable  the  Court  to  enforce  production,  if  it  should  see  fit  to  order  it.® 

When  inspection  is  obtained,  the  party  seeking  discovery,  or  his  solici- 
tor, attends  at  the  time  named  and  examines  the  documents.  He  may 
take  copies  of  them  himself,  but  the  usual  course  is  to  bespeak  copies  of 
the  more  important  ones.  Such  copies  are  of  course  paid  for  by  the  party 
bespeaking  them.  In  a  proper  case,  (as  when  the  chief  question  in  dispute 
is,  In  whose  handwriting  is  the  libel?)  the  Master  will  order  the  party  in 
possession  of  the  libel  to  permit  his  opponent  to  take  photographic  or  fac- 
simile copies  thereof,  of  course  at  his  own  expense.' 

Formerly  all  a])plications  relating  to  interrogatories  or  to  discovery  and 
inspection  of  documents  were  made  to  a  Judge  at  chambers,  unless  both 

1  Order  XXXI.  r.  16.  '       ^  75,  ^r.  17,  21,  22. 

8  lb.  r.  18. 

4  Bustros  V.  White,  (C.  A.)  1  Q.  B.  D.  423  ;  45  L.  J.  Q.  B.  642  ;  24  W.  K.  721  ;  34 
L.  T.  835. 

6  Per  Lindley,  J.,  in  Kain  v.  Farrer,  37  L.  T.  471  ;  W.  N.  1877,  p.  266. 

6  Taylor  v.  Batten,  (C.  A.)  4  Q.  B.  D.  85  ;  43  L.  J.  Q.  B.  72  ;  27  W.  R.  106  ;  39 
L.  T.  408. 

7  Davey  v.  Pemberton,  11  C.  B.  X.  S.  628, 

448 


DEFAULT   IN  MAKING   DISCOVERY,   ETC.  *  521 

parties  agreed  to  their  being  decided  by  a  Master.-^  But  now  by  the  Eules 
of  November,  1878,  all  such  applications  must  be  made  in  the  first  instance 
to  a  Master. 

*  Default  ill  making  Discovery.  *  522 

Any  party  failing  to  answer  interrogatories  or  to  discover  or  allow 
inspection  of  documents  as  ordered,  is  liable  to  attachment ;  and,  if  a  plain- 
tiff, to  have  his  action  dismissed  for  want  of  prosecution  ;  and,  if  a  defend- 
ant, to  have  his  defence,  if  any,  struck  out,  and  to  be  placed  in  the  same 
position  as  if  he  had  not  defended.^  This  highly  penal  provision  will  only 
be  exercised  in  the  last  resort,  and,  it  seems,  will  not  be  enforced  when  the 
parties  really  intend  to  answer.^  And  before  any  application  of  this  kind, 
the  other  party  must  have  obtained  a  peremptory  order  for  such  discovery 
within  a  time  fixed.  If  the  Master  makes  an  order  dismissing  an  action 
for  want  of  prosecution  unless  an  affidavit  in  answer  to  interrogatories  be 
filed  by  a  certain  date  ;  then  if  no  such  affidavit  be  filed,  the  action  is  at 
an  end.*  But  it  seems  that  a  Master  or  Judge  still  has  power  to  enlarge 
the  time  for  appealing  against  the  Master's  order  dismissing  the  action ;  * 
and  then  an  order  may  be  made  enlarging  the  time  for  delivering  the  inter- 
rogatories.® Though  such  power  will  only  be  exercised  in  very  special 
circumstances. 

Notice  of  Trial ;  Entry  for  Trial. 

Directly  either  party  has  joined  issue,  simply,  without  adding  any  fur- 
ther or  other  pleading,  the  pleadings  will  be  deemed  closed ;  ^  though  if  it 
appear  to  a  Judge  that  the  issues  of  fact  in  dispute  are  not  sufficiently 
defined,  he  may  direct  the  parties  to  prepare  issues ;  in  case  of  difiereuce 
to  be  settled  by  himself^ 

The  parties  being  thus  fairly  at  issue,  the  plaintiff  should  *  give    *  523 
notice  of  trial.     If  he  neglects  to  give  such  notice  within  six  weeks 
after  close  of  pleadings,  the  defendant   may  either  himself  give  notice  of 
trial,®  or  may  apply  to  a  Master  at  Chambers  to  dismiss  the  action  for 
want  of  prosecution  under  Order  XXXVI.  r.  4  rt.^°   Whichever  party  gives 

1  Order  XXXI.  r.  18,   Order  LIV.  r.  2.  2  Order  XXXI.  r.  20. 

8  Per  Lush,  J.,  in  Twycross  v.  Grant,  Weekly  Notes,  1875,  pp.  201,  229  ;  1  Char- 
ley, 114,  115;  Bitt.  10,  38;  20  Sol.  J.  54,  97;  60  L.  T.  Notes,  49,  84;  Fisher  i;. 
Hughes,  25  W.  R.  528. 

*  Whistler  v.  Hancock,  3  Q.  B.  D.  83 ;  45  L.  J.  Q.  B.  460  ;  24  W.  R.  640  ;  34 
L.  T.  682  ;  Wallis  v.  Hepburn,  3  Q.  B.  D.  84  n.  ;  King  v.  Davenport,  4  Q.  B.  D.  402  ; 
48  L.  J.  Q.  B.  606  ;  27  W.  R.  798. 

5  Burke  v.  Rooney,  4  C.  P.  D.  226  ;  48  L.  J.  C.  P.  601  ;  27  W.  R.  915  ;  Walling- 
ford  V.  Mutual  Society,  (H.  L.)  5  App.  Cas.  685  ;  50  L.  J.  C.  P.  49  ;  43  L.  T.  258. 

6  Carter  v.  Stubbs,  (C.  A.)  50  L.  J.  C.  P.  4  ;  29  W.  R.  132  ;  W.  N.  1880,  p.  183. 

7  Order  XXV.  8  Order  XXVI.  »  Order  XXXVI.  r.  4. 
10  R.  S.  C.  June,  1876,  r.  13. 

29  449 


*  523  PRACTICE  AND  EVIDENCE. 

notice  of  trial  has  the  choice  of  the  mode  of  trial :  but  this  should  always 
he  by  judge  and  jury  in  cases  of  defamation.  Either  party  therefore 
receiving  notice  of  trial  by  any  other  mode  tlian  before  a  jury  should  within 
four  days  give  notice  that  he  requires  a  jury,  and  wUl  thereupon  without 
any  summons  or  order  at  Chambers,  be  entitled  to  have  the  cause  tried 
before  a  jury.  Nor  can  any  Judge  or  Master  deprive  either  party  of  his 
right  to  a  trial  by  jury,  if  it  has  been  claimed  in  due  time.^ 

Ten  days'  notice  of  trial  must  be  given,  unless  the  other  party  has  con- 
sented to  take  short  (i.e.,  four  days')  notice.*^  The  notice  must  be  given 
before  entering  the  action  for  trial,^  and  cannot  be  countermanded  except 
by  consent  or  leave.*  It  must  state  whether  it  is  for  the  trial  of  the  action 
or  of  issues  therein ;  and  in  actions  in  the  Queen's  Bench,  Common  Pleas, 
and  Exchequer  Divisions,  the  place  and  day  for  which  it  is  to  be  entered 
for  trial. ^  Notice  of  trial  for  London  or  Middlesex  will  not  be  deemed  to 
be  for  any  particular  sittings,  but  for  any  day  after  expiration  of  the  notice 
on  wliich  the  trial  can  come  on  in  its  order.®  If  the  party  giving  notice 
of  trial  for  London  or  Middlesex  omit  on  the  same  day,  or  the  day  after, 
to  enter  the  action  for  trial,  the  other  party  may  do  so  within  four  days.' 
But  notice  of  trial  elsewhere  than  London  or  Middlesex  will  be  deemed  to 
be  for  the  first  day  of  the  next  assizes  at  the  place  mentioned,*  and  there 
either  party  may  enter  the  action  for  trial.® 

By  the  express  words  of  Order  XXXVI.  r.  3,  a  plaintiff  may  give  notice 

of  trial  with  his  reply,  although  the  pleadings  be  not  yet  completed.     But 

he  cannot  enter  the  cause  for  trial  until  the  record  is  complete ;  because  by 

rule  17a  of  the  same  Order  the  party  entering  the  action  for  trial  must 

deliver  to  the  officer  two  copies  of  the  whole  of  the  pleadings  in 

*  524    the  action.-^"  *  In  this  case  Stephen,  J.,  construed  r.  3  to  mean  that 

a  plaintiff  could  only  give  notice  of  trial  with  his  reply,  where  such 
reply  completed  the  pleadings.  That  was  very  probably  the  intention  of 
those  who  framed  the  rule ;  but  the  words  they  have  used  are  undoubtedly 
to  the  contrary  effect.  And  there  is  a  practical  advantage  in  enabling  a 
plaintiff  thus  to  hurry  on  a  dilatory  defendant.  Kelly,  C.B.,  considered 
that  a  plaintiff  could  alwa3^s  deliver  notice  of  trial  with  his  reply,  and  such 
has  been  and  still  is  the  practice  at  chambers,  both  before  and  since  this 
case  was  reported.  The  remarks  of  Stephen,  J.,  were  cited  to  the  Divi- 
sional Court  {Cockburn,  C.  J.,  and  Hawkins,  J.),  on  August  2nd,  1880,  in 

1  Sugg  V.  Silber,  1  Q.  B.  D.  362  ;  45  L.  J.  Q.  B.  460  ;  24  W.  R.  640  ;  34  L.  T.  682. 

2  Order  XXXVI.  r.  9.  '  lb.  r.  10.  <  lb.  r.  13. 
6  /6.  r.  8  ;  R.  S.  C.  Dec.  1875,  r.  12.  6  lb.  r.  11. 
^  lb.  r.  14.                                            8  Tb.  r.  12.                             9  lb.  r.  15. 

10  See  Metropolitan  Inner  Circle  Railway  Co.  v.  Metropolitan  Railway  Co.,  5  Ex.  D. 
196  ;  49  L.  J.  Ex.  505  ;  28  W.  R.  510  ;  42  L.  T.  591. 
450 


ADVICE   ON   EVIDENCE.  *  524 

a  case  of  Asquith  v.  Molineux ;  ^  but  it  was  held  that  the  words  of  Order 
XXXVI.  r.  3,  were  precise,  and  fully  justified  the  practice  at  chambers. 
So  that  now  it  is  settled  that  a  plaintiif  may  always,  if  he  pleases,  deliver 
notice  of  trial  with  reply.^ 

Advice  on  Evidence. 

As  soon  as  notice  of  trial  is  given,  or  in  urgent  cases  even  sooner,  the 
papers  should  be  laid  before  counsel  for  his  advice  on  evidence.  This 
should  always  be  done  by  both  sides,  even  in  cases  apparently  simple  ;  else 
the  action  may  be  lost  for  want  of  some  certificate  or  other  formal  piece  of 
proof,  as  in  Collins  v.  Carnegie.^  Every  document  in  the  case  should  be 
sent  in  to  counsel,  especially  the  afl&davits  of  documents,  the  answers  to 
interrogatories,  and  the  draft  notices  to  produce  and  to  inspect  and  admit. 
Also  some  statement  as  to  the  oral  evidence  proposed  to  be  given,  if  not 
the  full  proofs  which  will  afterwards  form  part  of  the  brief. 

Counsel  in  advising  on  evidence  must  consider  first  what  are  the  issues 
in  the  case  and  which  lie  on  the  plaintiff,  which  on  the  defendant ;  and 
then  state  seriatim  how  each  is  to  be  proved  or  rebutted. 

The  onus  lies  on  the  plaintiif  to  prove  that  the  defendant  published  or 
uttered  the  defamatory  words,  that  they  were  understood  in  the 
sense  alleged  in  the  innuendo,  that  they  *  referred  to  the  plaintiif,  *  525 
and,  if  the  occasion  be  one  of  qualified  privilege,  that  they  were 
published  or  uttered  maliciously.  In  some  cases,  also,  it  is  essential,  in 
every  case  desirable,  to  prove  special  damage  resulting  from  the  words.  It 
may  further  be  necessary  to  prove  that  the  plaintiff  at  the  date  of  publica- 
tion held  some  office  or  exercised  some  profession  or  trade,  and  that  the 
words  were  spoken  of  him  in  the  way  of  such  office,  profession,  or  trade. 
If  money  has  been  paid  into  Court,  the  onus  lies  on  the  plaintiff  of  prov- 
ing that  the  amount  is  insufficient.  If  the  Statute  of  Limitations  has  been 
pleaded,  the  onus  lies  on  the  plaintiff^  of  proving  a  publication  of  the  libel 
within  six  years,  or  the  utterance  by  the  defendant  of  words  actionable  J96r 
se  within  two  years,  or  that  damage  has  within  six  years  resulted  from  the 
utterance  by  the  defendant  of  a  slander  not  actionable  per  se. 

On  the  defendant,  on  the  other  hand,  lies  the  onus  of  proving  privilege, 
justification,  or  an  accord  and  satisfaction.  If  he  has  pleaded  a  plea  under 
Lord  Campbell's  Act,  the  onus  lies  on  the  defendant  to  prove  that  the  libel 
was  inserted  without  gross  negligence,  and  that  a  fuU  apology  was  inserted 
in  proper  type  before  action  brought,  or  as  soon  as  possible  afterwards.* 

1  49  L.  J.  Q.  B.  800  ;  Weekly  Notes,  1880,  p.  156. 

2  As  to  either  party  discontinuing  the  action,  see  Order  XXIII. 

8  1  A.  &  E.  695.  *  Wilby  v.  Henman,  2  Cr.  &  M.  658. 

5  See  ante,  p.  455. 

451 


*  525  PEACTICE   AND  EVIDENCE. 

The  plaintiff  may  also  offer  evidence  in  aggravation,  the  defendant  in 
mitigation,  of  damages.^ 

Each  party  should  be  prepared  with  evidence  not  only  to  prove  the  issues 
which  lie  upon  him,  but  also  to  rebut  his  adversary's  case.  Counsel  should 
name  the  \vitnesses  who  will  be  required.  If  a  material  witness  is  unavoid- 
ably absent,  it  may  be  necessary  to  apply  for  leave  to  countermand  notice 
of  trial,  under  Order  XXXVI.  r.  13,  or  to  postpone  the  trial.  The  trial 
will,  even  after  notice  of  trial,  be  postponed,  upon  terms,  in  order  to  pro- 
cure tlie  attendance  of  witnesses  from  abroad.''  In  other  cases  it  may  be 
necessary  to  apply  for  a  commission  abroad,  or  for  leave  to  examine,  before 
trial,  a  witness  who  is  dangerously  ill  or  about  to  leave  the  country.^  If  it 
be  necessary  to  bring  up  a  prisoner  to  give  evidence,  an  application  may  be 
made  to  the  judge  ex  parte  for  an  order,  under  16  &  17  Vict.  c.  30,  s.  9, 
on  an  affidavit  stating  where  the  prisoner  is  confined,  and  for  what 

*  526    crime,  and  when  *  and  where  his  attendance  will  be  required.     In 

the  case,  now  rare,  of  a  person  being  confined  upon  civil  process, 
the  above  statute  does  not  apply,  and  a  writ  of  haheas  corpus  ad  testifican- 
dum must  be  obtained  upon  application  on  affidavit  to  a  judge  at  chambers. 
This  application  apparently  cannot  be  made  ex  parte.  A  lunatic  may  be 
brought  up  from  his  asylum  under  such  a  writ  if  he  is  fit  for  examination.* 
A  witness  residing  in  Ireland  or  Scotland  can  be  compelled  to  attend  by  a 
subpcena  ad  testificandum,  issued  by  the  special  leave  of  a  judge  under  the 
17  &  18  Vict.  0.  34,  8.  1. 

Counsel  should  next  consider  what  documents  will  be  required,  and 
how,  if  the  originals  cannot  be  produced,  they  may  be  proved  by  secondary 
evidence.^  For  this  purpose  he  must  carefully  go  through  the  notice  to 
inspect  and  admit,  and  the  notice  to  produce  and  advise  on  their  sufficiency. 
He  is  sometimes  also  consulted  as  to  the  advisability  of  securing  a  special 
jury  or  of  applying  to  change  the  venue.® 

It  is  often  convenient  to  copy  the  advice  on  evidence  into  the  leader's 
brief,  especially  if  any  points  of  law  are  discussed  in  it,  and  cases  cited. 

Examination  of  Witnesses  before  Trial. 

If  a  witness  is  obliged  to  go  abroad  on  a  voyage  of  necessity,  or  is  so  ill 
and  infirm  that  in  all  probability  he  will  not  be  able  to  attend  at  the  trial, 
an  application  should  be  made,  after  issue  joined,  for  an  order,  under  Order 
XXXVII.  rr.  1,  4,  that  he  be  examined  upon  oath  before  a  Master  or  a 
special  examiner,  and  that  his  deposition  may  be  read  at  the  trial. 

1  See  ante,  pp.  296,  299. 

'^  Brown  v.  Murray,  4  D.  &  11.  830  ;  M'Cauley  v.  Thorpe,  1  Chit.  685. 

8  Post,  p.  526.  *  Fennell  v.  Tait,  1  C.  M.  &  R.  584. 

5  See  post,  p.  536.  *  Post,  p.  528. 

452 


EXAMESTATION"  OF  "WITNESSES   BEFORE  TRIAL.  *  52G 

It  is  a  misfortune  to  both  sides  when  such  a  necessity  arises.  The  jury- 
pay  little  attention  to  a  deposition  reaii  out  by  au  ufftcer  of  the  Court ;  and 
the  other  side  loses  the  precious  opportunity  of  cross-examining  the  witness 
in  the  presence  of  the  jury.  The  party  applying  should  show  on  affidavit 
that  the  witness  is  so  necessary  and  material  that  he  cannot  safely  proceed 
to  trial  without  him.  The  reasons  for  liis  absence  must  be  stated  and  veri- 
fied :  in  the  case  of  illness  the  affidavit  of  the  medical  man  in  attendance 
must  be  obtained.  The  other  side  will  object  on  the  ground  that 
the  evidence  of  the  witness  is  *  immaterial,  that  there  is  no  suffi-  *  527 
cient  reason  for  his  not  being  produced  in  Court,  that  the  same 
evidence  could  be  given  by  others  who  can  attend,  &c.  If  the  order  be 
made,  and  the  deposition  taken,  still  it  cannot  be  read  in  Court  without 
proof  of  continued  absence  or  illness.  But  for  this  purpose  the  affidavit 
of  the  solicitor  is  generally  sufficient. 

The  above  practice  applies  to  witnesses  either  within  or  without  the 
jurisdiction  of  the  Court ;  but  it  is  practically  confined  to  witnesses  of  the 
former  class.  Where  it  is  desired  to  take  evidence  out  of  the  jurisdiction, 
the  rule  is  to  apply  for  a  commission  abroad.  This  application  must  be 
made  on  affidavit,  stating  as  far  as  practicable  the  names  and  addresses  of 
the  foreign  witnesses,  and  showing  the  necessity  for  the  application,  and 
that  the  party  applying  cannot  safely  proceed  to  trial  without  their  evidence. 
Where  the  defendant  in  an  action  of  slander  applied  for  a  commission  to 
examine  witnesses  in  Australia,  he  was  ordered  to  state  in  an  affidavit  the 
general  nature  of  the  evidence  which  he  expected  such  witnesses  to  give.-^ 
Such  affidavit  may  be  made  by  the  managing  clerk  having  the  conduct  of 
the  action.  The  application  is  not  usually  made  till  after  issue  joined  :  if 
it  is  made  earlier,  reasons  for  such  urgency  must  be  assigned  in  the  affi- 
davit. It  Avill  be  an  answer  to  the  application,  if  it  can  be  shown  that  the 
witnesses  could  be  brought  to  England  without  much  greater  expense  ;  ^  or 
that  witnesses  now  in  England  could  give  the  same  evidence.^  Sometimes 
the  mere  delay,  wliich  will  thus  necessarily  be  caused,  is  a  sufficient  reason 
for  refusing  the  application.* 

The  costs  of  the  commission  must  be  borne  by  the  party  who  applied  for 
it,  unless  the  judge  at  the  trial  makes  any  order  in  respect  of  them.^ 

1  Ban-y  v.  Barclay,  15  C.  B.  N.  S.  849.  And  see  Macaulay  v.  Shakell  and  others, 
1  Bligli,  N.  S.  96  ;  Thorpe  v.  Macauley,  5  Madd.  19. 

2  Spiller  V.  Paris  Skating  Rink  Co.,  Weekly  Notes,  1880,  p.  228. 

8  The  M.  Moxham,  (C.  A.)  1  P.  D.  107, 115  ;  46  L.  J.  P.  D.  &  A.  17  ;  24  W.  R.  597, 
650  ;  34  L.  T.  559. 

*  Steuart  v.  Gladstone,  7  Ch.  D.  394  ;  47  L.  J.  Ch.  154  ;  26  W.  R.  277  ;  37  L.  T. 
575.  But  see  Milissich  v.  Lloyd's,  Weekly  Notes,  1875,  p.-  200 ;  1  Charley,  119  ;  Bitt. 
5 ;  20  Sol.  J.  31  ;  60  L.  T.  Notes,  33. 

5  Re  Imperial  Land  Co.  of  Marseilles,  37  L.  T.  588  ;  Weeklv  Notes,  1877,  p.  244. 

453 


0-J.I 


PRACTICE  AND   EVIDENCE. 


*  528  *  Special  Jury. 

Either  party  will  be  entitled  to  have  the  cause  tried  by  a  special  jury  upon 
giving  notice  in  writing  to  his  opponent  of  such  intention.  The  plaintiif 
must  give  such  notice  ten  days  at  least  before  trial,  unless  the  defendant 
is  under  terms  to  take  short  notice  of  trial  :  the  defendant  must  give  his 
notice  more  than  six  days  before  commission  day.^  The  ss.  109,  112  of 
the  Common  Law  Procedure  Act,  1852,  originally  did  not  apply  to  actions 
in  London  or  Westminster,  but  were  extended  to  such  actions  by  the  Jury 
Act  1870,  33  &  34  Vict.  c.  77,  s.  18.  If  the  time  has  gone  by,  either 
party  may  take  out  a  summons  for  a  special  jury,  and  must  then  be  pre- 
pared to  show  some  reason  for  the  appHcation,  e.g.,  that  difficult  questions 
of  fact  will  arise,  &c.  That  there  were  special  pleas  in  a  case  of  libel  has 
been  held  a  sufficient  reason  for  allowing  a  special  jury.^ 

The  party  who  has  obtained  a  special  jury  must  give  notice  thereof  to  the 
sheriff  six  days  before  the  first  day  of  the  sittings  or  the  commission  day  of 
the  assizes.^  Such  party  will  also  have  to  pay  the  costs  of  the  special  jury, 
if  sworn,  unless  the  judge  certifies  to  the  contrary. 

Change  of  Venue. 

The  plaintiff  having  selected  a  place  of  trial  when  he  drew  up  his  state- 
ment of  claim,  cannot  change  it  without  an  order ;  and  for  that  he  must 
apply  to  a  master  or  district  registrar,  showing  reasonable  ground  for  the 
change.  If,  however,  a  defendant  desires  to  have  the  venue  changed,  he 
must  show  more  than  reasonable  ground  for  the  change.  For  the  plaintiff 
has  the  right  to  fix  the  place  of  trial ;  and  the  defendant  must  show  a  dis- 
tinct preponderance  of  convenience  to  oust  plaintiff  of  his  right.*  Where 
tlie  defendant  resides  is  quite  immaterial.^     Where  the   cause  of 

*  529    action  arose  has  now  but  little  to  do  with  the  question.     *  The  de- 

fendant must  show  that  a  trial  in  the  county  to  which  he  desires 
to  change  the  venue,  will  be  clearly  less  expensive  and  more  convenient 
for  the  majority  of  witnesses  on  both  sides.  That  it  will  be  more  convenient 
for  defendant's  witnesses  is  alone  no  ground  for  the  application.^  But  the 
defendant  will,  as  a  rule,  be  entitled  to  have  the  venue  changed,  if  he  can 
show  that  there  is  no  probability  of  a  fair  trial  in  the  place  the  plaintiff  has 
selected,  e.g.,  if  a  local  newspaper  of  extensive  circulation  has  published 

1  Reg.  Gen.  Hilary  Term  1853,  r.  44. 

2  Roberts  v.  Brown,  6  C.  &  P.  757. 

3  Common  Law  Procedure  Act,  1852,  s.  112. 

*  Church  V.  Barnett,  L.  -R.  6  C.  P.  116  ;  40  L.  J.  C.  P.  138  ;  Plum  v.  Normanton 
Iron  Co.,  Weekly  Notes,  1876,  p.  105  ;  Bitt.  140  ;  20  Sol.  J.  340  ;  60  L.  T.  Notes,  303. 
6  Per  Quain,  J.,  1  Charley,  119  ;  Bitt.  53  ;  60  L.  T.  Notes,  103. 
6  Wheatcroft  v.  Mousley,  11  C.  B.  677. 

454 


PROOF   OF  plaintiff's   SPECIAL   CHARACTER.  *  629 

unfair  attacks  on  the  defendant  with  reference  to  the  subject-matter  of  the 
action.-^ 

This  application  is  not  generally  made  by  defendant  till  after  notice  of 
trial. 

Trial. 

When  the  action  is  called  on,  if  the  defendant  does  not  appear,  the  plain- 
tiff may  prove  his  claim  so  far  as  the  burden  of  proof  lies  upon  him.^  It  is 
not  necessary  to  produce  an  affidavit  of  service  of  notice  of  trial.^  If  the 
plaintiff  does  not  appear,  the  defendant  is  entitled  to  judgment  with  costs. 
Verdict  or  judgment  obtained  in  default  of  such  appearance  maybe  set 
aside  upon  application  to  a  judge  at  chambers  within  six  days  after  trial, 
upon  terms.*  Or  the  judge,  when  the  case  is  called  on,  may  postpone  or 
adjourn  the  trial,  upon  terms,  if  he  think  it  expedient  for  the  interests  of 
justice.^  But  the  fact  that  either  party  is  not  ready,  that  his  witnesses 
have  missed  the  train,  or  that  his  counsel  has  been  but  that  moment 
briefed,  is  not  generally  considered  by  judges  as  any  ground  for  a  post- 
ponement. But  it  is  otherwise  \There  there  has  been  no  negligence  or  de- 
fault, e.g.,  where  it  is  stated  on  affidavit  that  a  witness  is  unavoidably 
absent  through  illness.*  A  judgment  obtained  by  default  of  appearance 
will  be  set  aside  if  no  notice  of  trial  was  given,  or  if  for  any  other  reason 
the  defendant  was  not  aware  that  his  case  was  in  the  paper  for  trial,  unless 
his  ignorance  of  the  fact  was  caused  by  gross  negligence  in  his 
*  solicitor.''  *  ooO 

If,  however,  both  parties  appear  at  the  trial,  the  plaintiff  is  always 
entitled  to  begin,  even  where  the  onus  of  proof  lies  on  the  defendant.^ 

Proof  of  the  Plaintiff^s  Special  Character. 

Where  the  words  are  actionable  only  by  reason  of  the  plaintiff's  holding 
an  office  or  exercising  a  profession  or  trade,  the  plaintiff  must  prove  that 
he  held  such  office  or  exercised  such  profession  or  trade  at  the  date  of  pub- 
lication, and  that  the  words  complained  of  were  spoken  of  him  in  the  way 

1  Pybus  V.  Scudamore,  Arn.  464  ;  Walker  v.  Brogilcn,  17  C.  B.  (N.  S.)  571  ;  H 
Jur.  N.  S.  671  ;  13  W.  R.  809  ;  12  L.  T.  495. 

2  Order  XXXVI.  r.  18. 

3  Chorlton  v.  Dickie,  13  Ch.  D.  160  ;  49  L.  J.  Cli.  40  ;  28  W.  R.  223  ;  41  L.  T- 
469. 

4  lb.  r.  20.  ^  I^-  r.  21. 

6  Turner  v.  Meryweather,  7  C.  B.  251  ;  18  L.  J.  C  V.  155. 

7  Burgoine  v.  Taylor,  (C.  A.)  9  Ch.  D.  1  ;  47  L.  J.  Ch.  542  ;  26  W.  R.  568  ;  38 
L.  T.  438. 

8  Carter  v.  Jones,  6  C.  &  P.  64  ;  1  M.  &  R.  281  ;  Jlercer  v.  Whall,  5  Q.  B.  447,  462, 
463  ;  14  L.  J.  Q.  B.  267,  272. 

455 


*  530  PRACTICE  AND  EVIDENCE. 

thereof.  Sometimes  the  words  themselves  admit  the  plaintiff's  special 
character,  or  it  may  be  admitted  on  the  pleadings  :  if  so,  it  is  of  course 
unnecessary  to  give  any  evidence  on  the  point. ^ 

Strict  proof  of  the  plaintiff's  special  character  is  not,  as  a  rule,  recjuired. 
Thus,  to  prove  that  a  person  holds  a  pubhc  office,  it  is  not  necessary  to  pro- 
duce his  written  or  sealed  appointment  thereto  ;  ^  not  even  in  a  case  of 
murder.^  It  is  sufficient  to  show  that  he  acted  in  that  office,  and  it  will 
be  presumed  that  he  acted  legally.  So  where  the  libel  imputes  to  the 
plaintiff  misconduct  in  his  practice  of  a  physician  or  surgeon,  or  as  a  soli- 
citor, and  does  not  call  in  question  or  deny  his  qualification  to  practise,  it 
will  not  be  necessary  for  him  to  do  more  than  prove  that  he  was  acting  in 
the  particular  professional  capacity  imputed  to  him  at  the  time  of  the  pub- 
lication of  the  libel.*  It  is,  as  a  rule,  sufficient  to  call  the  plaintiff  to  say 
"  I  am  an  M.R.C.S."  or  "  I  am  a  barrister."  But,  when  the  libel  or  slander 
imputes  to  a  medical  or  legal  practitioner  that  he  is  not  properly  qualified, 
and  the  professional  qualification  is  again  denied  on  the  pleadings,  the 
plaintiff  should   always  be  prepared  to  prove  it,  by  producing  his 

*  531    diploma  or  certificate,  duly  sealed*  or  signed,  and  stamped,  *  where 

a  stamp  is  requisite.  At  Common  Law  there  was  no  other  way.^ 
But  now  the  "Law  List"  is  by  the  23  &  24  Vict.  c.  127,  s.  22,  made 
primd  facie  evidence  that  any  one  whose  name  appears  therein  as  a 
solicitor  is  a  solicitor  duly  certificated  for  the  current  year ;  and  similarly 
by  the  21  &  22  Vict.  c.  90,  s.  27,  the  "Medical  Eegister"  is  primd  facie 
evidence  that  the  persons  specified  therein  are  duly  registered  medical  prac- 
titioners. But  if  it  is  known  the  plaintiff's  (jualification  will  be  seriously 
challenged  at  the  trial,  it  is  safer  not  to  rely  solely  on  such  ]yrimd  facie 
proof,  but  to  produce  all  diplomas  and  certificates.  If  the  plaintiff  sues  as 
a  solicitor,  and  his  name  does  not  appear  in  the  "  Law  List,"  that  may  be 
only  because  he  has  not  taken  out  his  certificate  for  the  present  year ;  if  so, 
he  may  still  sue  for  a  libel  on  him  as  solicitor.® 

So  too  a  medical  man  can  sue  for  a  libel  on  him  professionalh',  although 
his  name  does  not  appear  in  the  "  Medical  Register,"  if  he  can  show  by  a 
certificate  under  the  hand  of  the  registrar,  or  in  any  other  way,  that  he  is 
duly  qualified  and  entitled  to  be  registered. 

1  Yrisarriv.  Clement,  3  Bmg.  432  ;  4  L.  J.  (Old  S.)  C.  P.  128  ;  11  Moore,  308  ;  2 
C.  &  P.  223. 

2  Berryman  v.  Wise,  4  T.  K.  366  ;  Cannell  v.  Curtis,  2  Bing.  N.  C.  228  ;  2  Scott, 
379. 

8  R.  V.  Gordon,  2  Leach,  581. 

*  Smith  V.  Taylor,  1  B.  &  P.  N.  R.  196,  204 ;  Rutherford  v.  Evans,  6  Bing.  451  ; 
8  L.  J.  (Old.  S.)  C.  P.  86. 

5  Moises  V.  Thornton,  8  T.  R.  303  ;  Collins  v.  Carnegie,  1  A.  &  E.  695  ;  3  N.  &  M. 
703  ;  Sparling  v.  Haddon,  9  Bing.  11  ;  2  Moo.  &  Scott,  14. 

c  Jones  V.  Stevens,  (1822)  11  Price,  235. 

456 


PROOF   OF   PUBLICATION.  *  531 

No  other  introductory  averment  is  now  material  or  necessary ;  hence,  if 
inserted,  it  may  be  treated  as  a  surplusage ;  it  need  not  be  proved. 

Proof  of  Publication. 

The  plaintiff  must  next  prove  that  the  defendant  published  the  libel  or 
spoke  the  slanderous  words  to  some  third  person.  The  statute  6  &  7  \Vni. 
IV.  c.  76,  ss.  6,  8,  13,  formerly  facilitated  proof  of  publication  of  a  libel 
contained  in  a  newspaper  ^  (a) ;  but  these  sections  are  now  repealed  by 
the  32  &  33  Vict.  c.  24,  s.  1,  sched.  1.  Nor  is  the  29th  section  of  the  39 
Geo.  III.  c.  79,  as  qualified  by  9  &  10  Vict.  c.  33,  s.  1,  of  any  practical 
assistance. 

The  Select  Committee  of  the  House  of  Commons  appointed  to  inquire 
into  the  law  of  Newspaper  Libel  recommend  "  that  the  name  of 
every  proprietor  of  a  newspaper,  or,  in  the  case  of  several  *  persons  *  532 
engaged  as  partners  in  such  proprietorship,  the  names  of  all  such 
l^ersons,  should  be  registered  at  the  office  of  the  Eegistrar  of  Joint  Stock 
Companies,  with  full  particulars  of  the  addresses  and  occupations  of  all 
such  persons,  or  of  any  change  therein."  *  This  would  be  a  beneficial 
provision,  if  it  were  also  enacted  that  a  certificate  purporting  to  issue  from 
the  office  of  the  said  Eegistrar  should  be  receivable  in  all  Law  Courts,  and 
in  all  proceedings  whether  civil  or  criminal,  as  sufficient  evidence  that  the 
defendant  was  proprietor  or  part-proprietor  of  the  paper  throughout  the 
period  during  wliich  his  name  was  on  the  register. 

Till  some  such  measure  becomes  law,  discovery  can  only  be  obtained 
under  the  6  &  7  Wm.  IV.  c.  76,  s.  19,  which  is  still  law ;  ^  or  interroga- 
tories may  now  be  administered  on  this  point.^  But  if  no  satisfactory 
admission  be  thus  obtained,  the  plaintiff  must  prove  that  the  newspaper 
"  was  purchased  of  the  defendant,  or  at  any  house,  shop,  or  office  belonging 
to  or  occupied  by  the  defendant,  or  by  his  servants  or  workmen,  or  where 
he  may  usually  carry  on  the  business  of  printing  or  publishing  such  news- 
paper, or  where  the  same  may  be  usually  sold."  ^ 

1  Mayne  v.  Fletcher,  9  B.  &  C.  382  ;  R.  v.  Franceys,  2  Ad.  &  E.  49 ;  R.  v.  Amphlit, 
4  B.  &  C.  35.  2  See  App.  B. 

3  Dixon  0.  Enoch,  L.  R.  13  Eq.  394  ;  41  L.  J.  Ch.  231  ;  20  W.  R.  359 ;  26  L.  T.  127. 

4  See  ante,  p.  514. 

^  6  &  7  Wm.  IV.  c.  76,  s.  8.  As  to  what  is  a  sufficient  publication  in  law  see  ante, 
c.  VI.  pp.  150-168.  As  to  constructive  publication  by  a  sen'ant  or  agent,  see  ante,  c. 
XII.  pp.  360-365,  Principal  and  Agent.  As  to  publication  by  telegram,  see  'William- 
son V.  Freer,  L.  R.  9  C.  P.  393  ;  43  L.  J.  C.  P.  161  ;  22  W.  R.  878  ;  30  L.  T.  332  ;  by 
postcard,  Robinson  v.  Jones,  4  L.  R.  Ir.  391. 

(n)  See  State  v.  Jeandell,  5  Harr.  (Pel.)  the  general  subject  of  proving  publication 

475  ;  Commonwealth  v.  Blanding,  3  Pick,  see  Simpson  v.  "Wiley,  4  Porter  (Ala. ),  215  ; 

304  ;    Southwick   v.    Stevens,    10  Johns.  Callan  v.  Gaylord,  3  Watts,  321  ;  Rice  v. 

443;  Woodburn  v.   Jliller,   Cheves,  194  ;  Withers,  9  Wend.  138  ;  Lawson  v.  Hicks, 

Respublica  v.  Davis,  3  Yeates,  128.    Upon  38  Ala.  279  ;  Lewis  r.  Few,  5  Johns.  1. 

457 


*  532  PKACTICE  AND   EVIDENCE. 

The  sale  of  each  copy  is  a  distinct  publication.^  Causing  a  libel  to  be 
printed  may  be  a  primd  facie  publication.^  But  if  the  libel  never  reaches 
the  hands  of  any  one  except  the  printers  and  compositors,  this  alone  would 
i]i  the  present  day  be  deemed  insufficient.* 

A  letter  is  published  as  soon  as  it  is  posted,  provided  it  ever 

*  533    *  reaches  the  party  to  whom  it  is  addressed,  which  will  be  pre- 

sumed if  there  be  no  evidence  to  the  contrary.  Thus  if  a  letter  in 
the  handwriting  of  the  defendant  be  produced  in  Court  with  the  seal 
broken,  and  the  proper  postmarks  outside,  that  is  sufficient  evidence  of 
publication."*  So  where  a  libel  had  appeared  in  print,  and  the  manuscript 
from  which  it  was  printed  is  proved  to  be  in  the  defendant's  handwriting, 
this  is  primd  facie  a  publication  by  the  defendant.  It  is  not  necessary  to 
prove  expressly  that  he  directed  or  authorized  the  printing.^  So  if  the 
defendant  write  a  libel,  which  is  in  some  way  subsequently  published,  this 
is,  primd  facie,  at  all  events,  a  publication  by  the  defendant.® 

Any  one  who  has  ever  seen  the  defendant  write  (even  though  once 
only),''  can  be  called  to  prove  his  handwriting.  So  can  any  one  who  has 
corresponded  with  the  defendant,  or  seen  letters  which  have  arrived  in 
answer  to  letters  addressed  to  the  defendant.  Thus  a  clerk  in  a  mercliant's 
office  who  has  corresponded  with  the  defendant  on  his  master's  behalf, 
may  be  called  to  prove  the  handwriting.^  The  usual  course  is  for  the 
plaintiff's  counsel  merely  to  ask  the  witness,  "  Are  you  acquainted  with 
the  defendant's  handwriting'?"  leaving  it  to  defendant's  counsel  to  cross- 
examine  as  to  the  extent  of  his  acquaintance.  Such  cross-examination  will 
only  weaken  the  force  of  his  evidence,  not  destroy  its  admissibility.®  By 
s.  27  of  the  C.  L.  P.  Act,  1854,  "comparison  of  a  disputed  writing  with 
any  writing  proved  to  the  satisfaction  of  the  judge  to  be  genuine,  shall  be 
permitted  to  be  made  by  the  witnesses ;  and  such  writings,  and  the  evi- 
dence of  witnesses  respecting  the  same,  may  be  submitted  to  the  Court  and 
jury  as  evidence  of  the  genuineness  or  otherwise  of  the  writing  in  dis- 
pute." ^^     But   the  evidence  of  experts  must  always   be  received  with 

1  R.  V.  Richard  Carlile,  1  Chitty,  451  ;  Duke  of  Brunswick  v.  Harmer,  14  Q.  B. 
185  ;  K.  V.  Stanger,  L.  R.  6  Q.  B.  352  ;  40  L.  J.  Q.  B.  96  ;  16  W.  R.  640, 

2  Baldwin  v.  Elphinstone,  2  W.  Bl.  1037. 

8  "Watts  V.  Fraser,  7  A.  &  E.  223  ;  ante,  p.  152  ;  Lawless  v.  Anglo-Egyptian  Cotton 
and  Oil  Co.,  L.  R.  4  Q.  B.  262  ;  10  B.  &  S.  226  ;  38  L.  J.  Q.  B.  129  ;  17  W.  R.  498. 

*  AVarren  v.  Warren,  1  C.  M.  &  R.  250  ;  4  Tyr.  850 ;  Ward  v.  Smith,  6  Bing.  749  ; 
4  M.  &  P.  595  ;  4  C.  &  P.  402  ;  Shipley  v.  Todhunter,  7  C.  &  P.  680. 

5  Bond  V.  Douglas,  7  C.  &  P.  626  ;  Tarpley  v.  Blabey,  2  Bing.  N.  C.  437  ;  R.  v. 
Lovett,  9  C.  &  P.  462  ;  Adams  v.  Kelly,  Ry.  &  M.  157. 

6  Per  Holt,  C.J.,  in  R.  v.  Beere,  12  Mod.  221  ;  1  Ld.  Raym.  414. 

7  Garrels  v.  Alexander,  4  Esp.  37.  '8  R.  v.  Slaney,  5  C.  &  P.  213. 
s  Eagleton  v.  Kingston,  8  Ves.  473  ;  Doe  d.  Mudd  v.  Suckermore,  5  A.  &  E.  730. 

1"  See  Brookes  v.  Tichborne,  5  Ex,  929  ;  20  L.  J.  Ex,  69  ;  14  Jur.  1122. 
458 


PROOF   OF   THE   LIBEL.  *  534 

caution.  In  a  recent  case,  an  expert  in  handwriting  *  swore  posi-  *  53-1 
tively  that  the  libel  was  in  the  handwriting  of  the  Lord  ]\Iayor 
elect ;  but  subsequently  a  young  man  came  forward  and  acknowledged  that 
he  wrote  it,  and  that  Sir  F.  Truscott  never  had  anything  to  do  with  the 
matter.^  If  the  defendant  be  present  in  Court,  he  may,  it  seems,  be  then 
and  there  required  to  write  something  which  the  Court  and  jury  may  com- 
pare with  the  document  in  dispute.'^ 

Publication  may  also  be  proved  by  the  evidence  of  an  accomplice,^  or 
by  the  defendant's  own  admission.^  But  such  admission  will  not  be  ex- 
tended beyond  its  exact  terms.  Thus  an  admission  that  the  defendant 
wrote  the  libel  is  no  admission  that  he  also  published  it.^  An  admission 
that  defendant  was  the  editor  of  a  periodical  at  a  certain  date  is  no  evidence 
to  connect  him  with  a  libel  published  in  tlie  same  periodical  at  a  later 
date.®  A  witness  may  be  asked  if  he  knows  who  wrote  the  libel,  but  if 
he  answers  '*  yes,"  he  is  not  bound  to  name  the  person,  because  it  may  be 
himself.'  The  plaintiff  may  even  call  the  defendant  himself  as  a  witness, 
nor  can  his  counsel  object  that  no  relevant  question  can  be  asked  him  that 
will  not  tend  to  criminate  him.  The  defendant  must  go  into  the  box,  and 
take  the  objection  himself,  when  the  question  is  asked.  No  one  can  take 
it  for  him.^  But  no  witness  can  be  compelled  to  answer  any  question,  if 
he  states  on  oath  that  he  objects  on  the  ground  that  to  answer  it  might 
tend  to  show  that  he  was  concerned  in  the  publication  of  libel. 

Where  the  facts  are  in  dispute,  it  will  be  for  the  jury  to  decide  whether 
the  defendant  wrote  the  libel,  whether  it  was  ever  published  to  a  third 
person  other  than  the  plaintilf,  whether  the  office  where  the  libel  was  pur- 
chased was  the  defendant's  or  not,  &c.,  &c.  When  the  facts  are  found,  it 
is  for  the  judge  to  decide  whether  there  has  been  a  publication  in  law  by 
the  defendant. 

*  Froof  of  the  Libel  *  535 

The  libel  itself  must  be  produced  at  the  trial ;  the  jury  are  entitled  in 
all  cases  to  see  it.^  The  defendant  is  entitled  to  have  the  whole  of  it  read." 
The  original  must  be  carefully  traced,  where  it  has  passed  through  many 

1  See  also  Seaman  v.  Netherclift,  1  C.  P.  D.  540  ;  45  L.  J.  C.  P.  798  ;  24  W.  R. 
834  ;  34  L.  T.  878 ;  (C.  A.)  2  C.  P.  D.  53  ;  46  L.  J.  C.  P.  128  ;  25  W.  R.  159  ;  35 
L.  T.  784.  2  Doe  d.  De\nne  v.  Wilson,  10  Moo.  P.  C.  502,  530. 

8  R.  V.  Haswell  and  Bate,  1  Dougl.  387  ;  R.  v.  Steward,  2  B.  &  Ad.  12. 

*  R.  V.  Hall,  1  Str.  416.  ^  The  Seven  BLshops'  case,  4  St.  Tr.  300. 

6  Macleod  v.  Wakley,  3  C.  &  P.  311.  ^  R.  v.  Slauey,  5  C.  &  P.  213. 

8  Boyle  V.  Wiseman,  10  Ex.  647  ;  24  L.  J.  Ex.  160  ;  24  L.  T.  (Old  S.)  274  ;  25 
L.  T.  (OldS.)  203. 

9  Wright  V.  Woodgato,  2  C.  M.  &  R.  573  ;  Gilpin  v.  Fowler,  23  L.  J.  Ex.  156. 
10  Cook  V.  Hughes,  R.  k  M.  112, 

459 


*  535  PEACTICE   AND   EVIDENCE. 

hands.''  Where  a  large  number  of  copies  are  printed  from  the  same  type, 
or  lithograplied  at  the  same  time  by  the  same  process,  none  of  them  are 
copies  in  the  legal  sense  of  the  word.  They  are  all  counterpart  originals, 
and  each  is  primary  evidence  of  the  contents  of  the  rest.^ 

"Where  the  libel  is  contained  in  a  letter  or  memorial  sent  to  a  Secretary 
of  State,  or  to  some  Government  department,  an  objection  is  often  raised 
to  its  production  on  grounds  of  public  policy.  If  this  objection  appears  to 
the  judge  to  be  well  founded,  no  evidence  can  be  given  of  the  contents  of 
such  letter  or  memorial.  In  Beatson  v.  Skene,^  it  was  decided  that  the 
objection  must  be  taken  by  the  head  of  the  public  department  of  State, 
who  is  alone  able  to  judge.  That  course  was  followed  in  the  recent  case  of 
Swann  v.  Vines,  tried  before  Lord  Coleridge  and  a  special  jury  at  West- 
minster in  November,  ISTZ.*  The  rule  on  the  pbint  is  that  "the  Court  is 
entitled  to  have  the  pledge  and  security  of  the  head  ofiicer  of  State  to  give 
the  reason  for  tlie  non-production  of  those  documents  which  it  is  objected 
to  produce,  and  to  demand  that  he  shall  come  into  the  witness-box,  and 
there  say  that  he  is  the  head  of  the  department,  and  objects  to  such  and 
sucli  documents  being  produced,  specifying  them,  on  the  ground  of  public 
policy."  ^  But  in  the  case  of  Spackman  v.  Gibney,  tried  before  the  same 
learned  judge  at  the  Bristol  Spring  Assizes,  1878,  the  Government  clerk, 
who  had  brought  down  the  document  in  obedience  to  his  subpoena,  refused 
to  produce  it,  stating  that  the  Home  Secretary  had  ordered  him  to 
*  536  object  on  grounds  of  public  policy  ;  and  the  learned  judge  *  refused 
to  trouble  Mr.  Cross  to  come  down  to  Bristol  to  repeat  what  his 
clerk  had  said.  But  a  letter  written  by  a  private  individual  to  the  Chief 
Secretary  of  the  Postmaster  General  complaining  of  the  conduct  of  the 
guard  of  the  Exeter  mail,  though  it  may  be  a  privileged  communication  in 
the  sense  that  the  plaintiff  must  prove  actual  malice,  is  not  a  document 
privileged  from  production  on  the  ground  of  public  policy.® 

If  the  original  libel  has  been  lost  or  destroyed,  secondary  evidence  may 
of  course  be  given  of  it,'^  except  where  the  libel  is  contained  in  an  official 
document,  which  is  privileged  from  production  on  the  ground  of  public 
policy,  in  which  case  the  same  public  policy  requires  that  no  secondary 
evidence  of  its  contents  shall  be  given.*     The  plaintiff  is  also  entitled  to 

1  Fryer  v.  Gathercole,  4  Ex.  262 ;  18  L.  J.  Ex.  389  ;  Adams  v.  Kelly,  Ey.  &  Moo. 
157. 

2  R.  V.  "Watson,  2  Stark.  129  ;  Johnson  v.  Hudson  and  Morgan,  7  A.  &  E.  233,  n. 
8  5  H.  &  N.  838 ;  29  L.  J.  Ex.  430  ;  6  Jiir.  N.  S.  780  ;  2  L.  T.  378. 

4  See  also  M'Elveney  v.  Connellan,  17  Ir.  C.  L.  R.  55. 
fi  Per  Grove,  J.,  in  Kain  v.  Farrer,  37  L.  T.  470. 

6  Blake  v.  Pilfold,  1  Moo.  &  Rob.  198. 

7  Rainy  v.  Bravo,  L.  R.  4  P.  C.  287  ;  20  W.  R.  873 ;  Gathercole  v.  Miall,  15  M.  & 
W.  319. 

8  Home  V.  Bentinck,  2  BroJ.  «£  B.  130  ;  Anderson  v.  Hamilton,  ih.  156,  n. ;  Stace 

460 


PROOF   OF   THE   LIBEL. 


536 


give  secondary  evidence  of  the  contents  of  the  libel,  if  it  be  in  the  defend- 
ant's possession  and  is  not  produced,  after  notice  to  produce  it  given  a  rea- 
sonable time  before  the  trial.  So  also  where  the  libel  is  in  the  possession 
of  some  one  beyond  the  jurisdiction  of  the  Court,  who  refuses  to  produce 
it,  on  request,  although  informed  of  the  purpose  for  which  it  is  required.^ 
AVhere  the  libel  is  written  or  placarded  on  a  wall,  so  that  it  cannot  con- 
veniently be  brought  into  Court,  secondary  evidence  may  be  given  of  its 
contents.^ 

All  questions  as  to  the  admissibility  of  secondary  evidence  are  for  the 
judge,  and  should  be  decided  by  him  then  and  there.' 

If  the  words  proved  materially  differ  from  those  set  out  in  the  statement 
of  claim,  this   is  a  variance  which  would  formerly   have  been  fatal.* (a) 

V.  Griffith,  L.  R.  2  P.  C.  428  ;  6  Moore  P.  C.  C.  N.  S.  18  ;  20  L.  T.  197  ;  Dav^kins  v. 
Lord  Rokeby  (Ex.  Ch.),  L.  R.  8  Q.  B.  255. 

1  Boyle  V.  Wiseman,  10  Ex.  617  ;  24  L.  J.  Ex,  160  ;  Newton  v.  Chaplin,  10 
C.  B.  56  ;  R.  v.  Lhmfaethly,  2  E.  &  B.  940  ;  23  L.  J.  M.  C.  33  ;  R.  v.  Aickles,  1  Leach, 
330. 

2  Per  Lord  Abinger  in  Mortimer  v.  McCallan,  6  M.  &  W.  at  p.  68  ;  Bruce  v.  Nicol- 
opulo,  11  Ex.  at  p.  133  ;  24  L.  J.  Ex.  at  p.  324. 

3  Boyle  V.  Wiseman,  11  Ex.  360  ;  24  L.  J.  Ex.  284. 

*  Bell  V.  Byrne,  13  East,  554  ;  Tabart  v.  Tipper,  1  Camp.  850. 


(a)  The  more  general  mle  at  common 
law  in  this  country  is  that  while  all  the 
words  need  not  be  proved  provided  enough 
are  proved  to  establish  the  making  of  the 
alleged  charge  against  the  plaintiff,  other 
words  of  similar  import  or  equivalent  words 
cannot  be  received  in  evidence.  Durrah  v. 
Stilwell,  59  Ind.  139  ;  Wheeler  v.  Robb, 
1  Blackf.  330  ;  Tucker  v.  Call,  45  Ind.  31  ; 
Moore  v.  Bond,  4  Blackf.  458  ;  Olmsted  v. 
Miller,  1  Wend.  506  ;  Haley  v.  State,  63 
Ala.  89  ;  Commonwealth  v.  Walters,  1 
Port.  (Ala.)  377;  Williams  v.  Brj'ant, 
4  Ala.  44  ;  Teague  v.  Williams,  7  Ala. 
844  ;  Easley  v.  Moss,  9  Ala.  266  ;  Scott 
V.  Mackintosh,  15  Ala.  662;  Merrill  v. 
Peaslie,  17  N.  H.  546  ;  Taylor  v.  Moran, 
4  Met.  (Ky.)  127  ;  Wallace  v.  Dixon,  82 
111.  202  ;  Slocomb  v.  Kuykendall,  1  Scam, 
187  ;  Sanfonlr.  Gaddis,  15  111.  228  ;  Baker 
V.  Young,  44  111.  42  ;  Clements  v.  Malo- 
ney,  55  Mo.  353  ;  Street  v.  Bushneli,  24 
Mo.  328  ;  Birch  v.  Benton,  26  Mo.  153  ; 
Pennington  v.  Meeks,  46  Mo.  217  ;  Bundy 
V.  Hart,  ib.  460.  So  far  indeed  has  this 
rule  gone  that  in  Williams  v.  Bryant,  supra, 
it  was  held  that  evidence  that  the  defend- 
ant called  the  plaintiff  a  strumpet  would 


not  satisfy  an  allegation  that  he  had 
charged  her  with  being  a  whore.  Comp. 
Doherty  v.  Brown,  10  Gray,  250.  In  Long 
V.  Fleming,  2  Miles,  the  words  alleged 
were  "  L.  is  pregnant  and  gone  with  child 
seven  months,"  and  evidence  was  excluded 
that  the  defendant  had  said  "  Have  you 
heard  anything  about  L.'s  being  pregnant 
by  Dr.  P.  V  See  King  v.  Whitley,  7  Jones, 
529.  In  Foster  v.  Small,  3  Whart.  138, 
the  words  alleged  were,  "  Dr.  F,  is  not  a 
physician  but  a  two-penny  bleeder,"  and 
evidence  was  excluded  that  the  defendant 
had  said,  "  If  Dr,  F.  is  a  two-penny  phy- 
sician, I  am  none  ;  I  am  a  regular  graduate 
and  no  quack."  In  Stees  v.  Kenible,  27 
Penn.  St.  112,  the  words  alleged  were, 
"You  would  steal,  and  you  will  steal," 
and  it  was  held  that  the  following  words 
could  not  be  shown,  "A  man  that  would 
do  that  would  steal."  And  in  Dickey  r. 
Andros,  32  Vt.  55,  it  was  held  that  evi- 
dence that  the  defendant  said  he  sitpjwscd 
the  plaintitr  to  have  committed  a  certain 
crime  would  not  su])port  an  allegation  that 
the  defendant  directly  charged  the  crime 
upon  the  plaintiff.  But  see  Treat  v.  Brown- 
mg,  4 Conn,  408.    The  declarationinJohnp 

461 


537 


PRACTICE  AND   EVIDENCE, 


*  537    But  now  the  judge  has  ample  power  to  amend  *  the  record,  if  in 

his  discretion  he  considers  such  amendment  can  be  made  without 

prejudice  to  the  defendant.^     But  no  amendment  will  be  made,  the  result 

of  which  will  be  to  render  the  statement  of  claim  demurrable,^     The  de- 

1  Order  XXVIL,  rr,  1,  6  ;  Order  LIX.,  r,  2,  R.  S.  C.  April,  1880,  r.  44. 

2  Martyn  v.  Williams,  1  H.  &  N,  817  ;  26  L.  J.  Ex.  117  ;  Caulfield  v.  Whitworth, 
16  W.  R,  936  ;  18  L.  T.  527. 


ston  V.  Tait,  6  Binn.  121,  alleged  collusion 
between  three  persons  to  have  been  charged, 
and  it  was  held  that  it  could  not  be  shown 
that  the  charge  was  of  collusion  between 
two  of  the  three,  including  the  plaintiff. 
But  couip.  Nichols  v.  Hayes,  13  Conn.  155  ; 
Dowd  V.  Winters,  20  Mo.  361.  All  this, 
it  niu|t  be  said,  looks  not  a  little  like 
solemn  trilling  with  serious  things.  There 
may  be  reason  lor  a  strict  rule  as  to  proof 
of  an  alleged  libel  ;  but  some  allowance 
should  be  made  in  slander  cases  for  the 
weakness  of  memory. 

In  some  States  it  is  held  that  synony- 
mous words  may  be  proved,  though  not 
words  that  merely  convey  a  similar  idea. 
Jones  V.  Edwards,  57  Miss.  28.  And  in  other 
States  (perhaps  with  the  same  meaning) 
it  is  held  with  much  good  sense  that  other 
words  than  those  alleged  may  be  proved  if 
they  are  of  the  same  effect.  Brown  v. 
Barnes,  39  Mich.  211  ;  Distin  v.  Rose,  69 
N.  Y.  122  ;  Chace  v.  Sherman,  119  Mass. 
287  ;  Baldwin  v.  Soule,  6  Gray,  321  ;  Rob- 
bins  V.  Fletcher,  101  Mass.  115  (statute); 
■Pegram  v.  Stoltz,  67  N.  Car.  144  (statute  ; 
for  the  earlier  rule  see  King  v.  Whitby,  7 
Jones,  529) ;  Dufresne  v.  Weise,  46  Wis. 
•290.  But  it  is  probably  different  in  Mas- 
sachusetts, where  the  plaintiff  professes  to 
set  out  the  precise  language  of  the  defend- 
ant. Downs  V.  Hawley,  112  Mass.  237. 
See  Payson  v.  Macomber,  3  Allen,  69  ; 
Taylor  v.  Kneeland,  1  Doug.  (Mich.)  67. 
At  common  law  to  allege  words  to  have 
been  spoken  in  English  and  to  attempt  to 
prove  them  spoken  in  a  foreign  tongue 
•would  be  a  variance.  Bower  v.  Deideker, 
-38  Iowa,  355  ;  Zenobia  v.  Axtell,  6  T.  R. 
162  ;  Rehauserr.  Schwarger,  3  Watts,  28  ; 
•Hickleyi;.  Grosjean,  6  Blackf.  351  ;  Keen- 
holts  V.  Becker,  3  Denio,  346  ;  Warmouth 
V.  Cramer,  3  Wend.  395  ;  Kuschbaughn  v. 
Slusser,  12  Ind.  453  ;  Townshend,  Slan- 
der, §  330.  So  too  after  alleging  the  words 
to  have  been  spoken  in  the  third  person  to 

462 


offer  evidence  of  words  in  the  second  per- 
son, according  to  Miller  v.  Miller,  8  Johns. 
74.  And  vice  versa.  Culbertson  v.  Stan- 
ley, 6  Blackf.  67  ;  Williams  v.  Harrison, 
3  Mo.  411  ;  AVolf  v.  Rodifer,  1  Har.  &  J. 
409.  But  this  too  is  a  hard  rule,  and  the 
contrary  is  held  in  Daily  v.  Gaines,  1  Dana, 
529  ;  Huffman  v.  Shumate,  4  Bibb,  515, 
Variance  in  time  and  place  is  not  material 
in  ordinary  cases.  Potter  v.  Thompson, 
22  Barb.  89  ;  Pegram  v.  Stoltz,  67  N.  Car. 
144. 

By  all  of  the  authorities  it  is  enough 
to  prove  the  substance  of  the  alleged  words, 
that  is,  to  prove  enough  or  indeed  more 
than  enough  of  those  words  to  make  out 
the  offence  declared  upon.  Clark  v.  Brown, 
116  Mass.  504  ;  Dohertyt;.  Brown,  10  Gray, 
250 ;  Payson  v.  Macoml)er,  3  Allen,  69,  72  ; 
Edgerly  v.  Swain,  32  N.  H.  478  ;  Pen- 
nington v.  Meeks,  46  Mo.  217  ;  Cooper  v. 
Marlow,  3  Mo.  188  ;  Pasley  v.  Kemp,  22 
Mo.  409;  Durrah  v.  Stilwell,  59  Ind.  139  ; 
Desmond  v.  Brown,  29  Iowa,  53  ;  Bower 
V.  Deiileker,  38  Iowa,  355 ;  Thomas  v. 
Fischer,  71  111.  576  ;  Baker  v.  Young,  44 
111.  42  ;  Crotty  v.  Morrissey,  40  111.  477  ; 
Wallace  r.  Dixon,  82  111.  202  ;  Haley  v. 
State,  63  Ala.  89.  See  Wilson  t;.  Nations, 
5  Yerg.  211,  laying  down  a  similar  rule 
concerning  pleas  in  justification  ;  and  see 
ante,  p.  170.  It  is  not  necessary  to  prove 
the  allegation  of  words  which  in  no  way 
affect  the  main  charge  when  that  is  action- 
able alone  and  is  proved.  Schmisseur  v. 
Kreilich,  92  111.  347  ;  Sanford  v.  Gaddis, 
15  111.  228  ;  Wilborn  v.  Odell,  29  111.  456  ; 
Thomas  v.  Fischer,  71  111.  576  ;  Baker  v. 
Young,  44  111.  42.  When  however  all  the 
words  alleged  are  necessary  to  constitute 
one  charge  all  must  be  proved.  Schmis- 
seur V.  Kreilich,  supra.  And  in  Massa- 
chusetts immaterial  words  may  be  made 
material  by  specially  setting  them  out. 
Payson  v.  Macomber,  3  Allen,  69. 


PROOF   OF    SPEAKING   OF   THE   SLAXDER.  *  537 

fendant  is  entitled  to  an  adjournment  if  he  really  desires  to  justify  the 
words  newly  inserted  in  the  statement  of  claim  by  such  amendment.^ 

Proof  of  the  Speaking  of  the  Slander. 

In  cases  of  slander,  the  only  way  to  prove  publication  is  by  calling  those 
who  heard  the  defendant  speak  the  words.  It  is  not,  in  strictness,  suffi- 
cient to  prove  that  the  defendant  spoke  words  equivalent  to  those  set  out  in 
the  statement  of  claim.^  Thus  where  the  declaration  alleged  that  the  de- 
fendant stated  as  a  fact  that  "  A.  could  not  pay  his  laborers,"  and  the  evi- 
dence was  that  he  had  asked  a  question,  "  Have  you  heard  A.  cannot  pay 
his  laborers  ? "  the  plaintiff"  was  nonsuited.^  But  now  if  the  words  proved 
convey  practically  the  same  meaning  as  the  words  laid,  the  variance  will 
be  held  immaterial,  or  else  the  judge  will  amend.* 

It  was  never  necessary,  however,  to  prove  all  the  words  laid  in  the  dec- 
laration ;  if  the  words  that  are  proved  are  intelligible  and  actionable  by 
themselves.^ 

If  the  witness  committed  the  words  to  writing  shortly  after  the  defendant 
uttered  them,  he  may  refer  to  such  writing  to  refresh  his  memory ;  but  it 
must  be  the  original  memorandum  that  is  referred  to,  not  a  fair 
copy.®  And  so  Avhere  the  action  is  for  procuring  a  libel  to  *  be  *  538 
published  by  making  a  verbal  statement  to  the  reporter  of  a  news- 
paper, who  took  it  down  in  writing,  the  original  writing  taken  down  by 
the  reporter  and  handed  by  him  to  the  editor  must  be  produced  in  Court ; 
otherwise  it  will  not  appear  that  it  was  the  same  or  substantially  the  same 
as  the  libel  which  appeared  in  the  newspaper. "^ 

Where  the  Governor  of  a  British  colony  made  communications  to  the 
Attorney-General  in  his  official  capacity  defamatory  of  the  plaintiff",  and 
the  Attorney-General  was  called  as  a  witness  in  an  action  against  the  Gov- 
ernor, it  was  held  that  he  was  not  bound  to  disclose  what  the  Governor  had 
said  to  him.^ 

If  the  words  be  spoken  in  a  foreign  language,  the  interpreter  must  be 
called  to  prove  their  meaning ;  and  it  must  be  further  proved  that  those 
who  heard  them  understood  that  language ;  else  there  is  no  publication.^ 

1  Saunders  v.  Bate,  1  H.  &  N.  402.  And  see  Foster  v.  Pointer,  9  C.  &  P.  718  ; 
May  V.  Brown,  3  B.  &  C.  113  ;  Lord  Churchill  v.  Hunt,  2  B.  &  Aid.  685. 

2  Armitage  v.  Dunster  (1785),  4  Dougl.  291  ;  MaitUind  and  others  v.  Goldncy  and 
another  (1802),  2  East,  426. 

'  Barnes  v.  HoUoway  (1799),  8  T.  R.  150. 

*  Dancaster  v.  Hewson,  2  Man.  &  Ry.  176  ;  Sydenham  v.  Man  (1G17),  Cro.  Jac. 
407  ;  Orpwood  v.  Barkes,  vel  Parkes,  4  Bing.  261  ;  12  Moore,  492  ;  Smith  v.  Knowel- 
den,  2  M.  &  Gr.  561.  6  Per  Lawrence,  J.,  2  East,  434. 

«  Burton  v.  Plnmmer,  2  A.  &  E.  343.  7  Adams  v.  Kelly,  Ry.  &  Moo.  157. 

8  Wyatt  V.  Gore,  1  Holt,  N.  P.  299.  9  Ante,  pp.  110,  471. 

463 


*  538  PRACTICE   AND   EVIDENCE. 


Evidence  as  to  the  Innuendo. 

Whenever  the  "words  used  are  not  well-known  and  perfectly  intelligible 
English,  but  are  foreign,  local,  technical,  provincial,  or  obsolete  expressions, 
parol  evidence  is  admissible  to  explain  their  meaning,  provided  such  mean- 
ing has  been  properly  alleged  in  the  statement  of  claim  by  an  innuendo. 
The  rule  is  the  same  where  words  which  have  a  meaning  in  ordinary  Eng- 
lish are  yet,  in  the  particular  instance  before  the  Court,  clearly  used  not 
in  that  ordinary  meaning,  but  in  some  peculiar  sense ;  as  are  slang  and 
cant  expressions.  But  where  the  words  are  well-known  and  perfectly  in- 
telligible English,  evidence  cannot  be  given  to  explain  that  meaning  away, 
unless  it  is  first  in  some  way  shown  that  that  meaning  is  for  once  inappli- 
cable. This  may  appear  from  the  words  themselves  :  to  give  them  their 
ordinary  English  meaning  may  make  nonsense  of  them.  But  if  with  their 
ordinary  meaning  the  Avords  are  perfectly  good  sense  as  they  stand,  facts 
must  be  given  in  evidence  to  show  that  they  may  have  borne  a  special 
meaning  on  that  particular  occasion.  After  that  has  been  done,  a  bystander 
may  be  asked,  "  What  did  you  understand  by  tlie  expression  used  ? "     But 

without  such  a  foundation  being  laid,  the  question  is  not  allowable.-^ 
*  539    *  And  this  is  so,  whether  the  word  can  be  found  in  the  last  edition 

of  the  English  dictionary  or  not.^  Figurative  or  allegorical  terms 
of  a  defamatory  character,  if  of  Avell-known  import,  such  as  imputing  to  a 
person  the  qualities  of  the  "  frozen  snake  "  in  the  fable,  need  no  evidence 
to  explain  their  meaning.®  Nor  do  historical  allusions  or  comparfsons  to 
odious,  notorious,  disreputable  persons ;  as  where  the  conduct  of  the  plain- 
tiff in  a  case  which  he  conducted  as  attorney  for  one  of  the  parties  was  com- 
pared to  that  of  "  Messrs.  Quirk,  Gammon,  and  Snap ;  "  the  novel  "  Ten 
Thousand  a  Year  "  was  put  in  and  taken  as  read.* 

Wherever  the  words  sued  on  are  susceptible,  both  of  a  harmless  and  an 
injurious  meaning,  it  will  be  a  question  for  the  jury  to  decide  which  mean- 
ing was  in  fact  conveyed  to  the  hearers  or  readers  at  the  time  of  publication. 
It  will  be  of  no  avail  for  the  defendant  to  urge  (except,  perhaps,  in  mitiga- 
tion of  damages)  that  he  intended  the  words  to  convey  the  innocent  mean- 
ing, if  the  jury  are  satisfied  that  ordinary  bystanders  or  readers  would  have 
certainly  understood  them  in  the  other  sense.^  Every  man  must  be  taken 
to  have  intended  the  natural  and  probable  consequences  of  his  act.     The 

1  Daines  v.  Hartley,  3  Exch.  200  ;  18  L.  J.  Ex.  81  ;  12  Jur.  1093  ;  Baniett  v. 
Allen,  3  H.  &  N.  376  ;  27  L.  J.  Ex.  415  ;  Humphreys  v.  Miller,  4  C.  &  P.  7 ;  Duke 
of  Brunswick  v.  Harmer,  3  C.  &  K.  10. 

2  Homer  v.  Taunton,  5  H.  &  X.  661. 

8  Hoare  v.  Silverlock,  12  Q.  B.  624  ;  17  L.  J.  Q.  B.  306. 
*  Woodgate  v.  Ridout,  4  F.  &  F.  202. 
6  Fisher  v.  Clement,  10  B.  &  C.  472. 

464 


PROOF   THAT   THE  WORDS   REFER  TO   THE   PLAINTIFF.     *  o39 

plaintiff  may  give  evidence  of  surrounding  circumstances  from  which  a  de- 
famatory meaning  can  be  inferred ;  he  may  call  witnesses  to  state  how  they 
understood  the  libel ;  though  the  jury  are  not  bound  to  adopt  the  opinions 
of  such  witnesses.^  Also  in  this  case  evidence  of  subsequent  words  of  the 
same  import  may  be  given,  so  as  to  explain  and  point  the  libel  charged. ^ 

The  plaintiff  may  also  show  that  the  words,  though  apparently  commen- 
datory, may  have  been  spoken  ironically. 

If  however,  the  words  are  in  their  primary  sense  not  actionable,  and 
there  is  no  evidence  of  any  facts  known  both  to  the  writer  and  the  person 
to  whom  he  wrote,  which  could  reasonably  induce  the  latter  to  put 
upon  them  any  actionable  secondary  *  meaning,  the  judge  should  *  540 
stop  the  case.^  So,  too,  if  the  words  are  not  reasonably  susceptible 
of  the  defamatory  meaning  put  upon  them  by  tlie  innuendo,  tlie  judge 
should  nonsuit  the  plaintiff.*  If,  however,  in  his  opinion  the  words  are 
capable  of  the  meaning  ascribed  to  them  by  the  innuendo,  and  there  is  any 
evidence  to  go  to  the  jury  that  they  were  used  with  that  meaning,  then  it 
will  be  for  the  jury  to  decide -whether  in  fact  the  words  were  understood  in 
that  sense  by  those  who  heard  or  read  them. 

Proof  that  the  words  refer  to  the  Plaintiff. 

If  the  libel  does  not  name  the  plaintiff,  there  may  be  need  of  some  evi- 
dence to  show  who  was  meant.  («)  The  plaintiff  may  give  evidence  of  all 
"  surrounding  circumstances ;  "  i.e.,  the  cause  and  occasion  of  publication, 
later  statements  made  by  the  defendant,  and  other  extraneous  facts  which 
will  explain  and  point  the  allusion.  The  plaintiff  may  also  call  at  the  trial 
his  friends  or  others  acquainted  with  the  circumstances,  to  state  that  on 
reading  the  libel  they  at  once  concluded  that  it  was  aimed  at  the  plain- 
tiff. ^(6)     It  is  not  necessary  that  aU  the  world  should  understand  the 

1  Broome  v.  Gosden,  1  C.  B.  732. 

2  Peaice  v.  Ornsby,  1  M.  &  Rob.  455. 

8  Capitaf  and  Counties  Bank  v.  Henty  and  Sons,  (C.  A.)  5  C.  P.  D.  514  ;  49  L.  J. 
C.  P.  830  ;  28  W.  R.  851  ;  Ruel  v.  Tatnell,  29  W.  R.  172  ;  43  L.  T.  507. 

*  Mulligan  v.  Cole  and  others,  L.  R.  10  Q.  B.  549  ;  44  L.  J.  Q.  B.  153  ;  33  L.  T. 
12;  ante,  pp.  112-117. 

5  Broome  v.  Gosden,  1  C.  B.  723  ;  R.  v.  Barnard,  Times  for  December  I7tli,  1878, 
post,  p.  593. 

{a)  If  the  words  do  not  plainly  indicate  ward,  12  Conn.  262  ;  Goodrich  v.  Davis,  11 

the  fact   it  should  be  alleged   that   they  Met.  473  ;  Miller  v.  Butler,  6  Cash.  71  ; 

were  spoken  of  the  plaintiff.     Gcisler  v.  Leonard   v.   Allen,    11    Ciish.    241  ;    Mc- 

Browu,  6  Xeb.  254  ;  Milligan  v.  Thorn,  6  Langhlin  v.  Russell,  17  Ohio,  475  ;  Smag- 

Wend.    412  ;  Sayre  v.  Jewett,   12  Wend,  ley  v.   Stark,   9  Ind.  386  ;    Tompkins  v. 

135  ;  Baldwin  v.  Hildreth,  14  Gray,  221  ;  Wisener,  1  Sneed,  558  ;    Morgan   i^.   Liv- 

Lewis  V.  Black,  27  Miss.  425.  ingston,  2  Rich.  573  ;  Russell  v.  Kelly,  44 

('))  See    ante,    p.  94,    note  ;    Smart  v.  Cal.  641  ;  Howe  Machine  Co.  v.  Souder, 

Blanchard,  42  N.  H.  137  ;  Mix  u.  Wood-  68  Ga.   64.     But  see  Snell  v.  Snow,   13 

30  465 


*  540  PRACTICE  AND  EVIDEXCE. 

libel ;  it  is  sufficient  if  those  who  knew  the  plaintiff,  can  make  out  that  he 
is  the  person  meant. -^  [In  Eastwood  v.  Holmes,^  Willes,  J.,  would  not 
allow  a  witness  to  be  asked,  "  To  whom  did  you  understand  the  words  to 
apply  1 "  on  tlie  ground  that  that  was  the  question  for  the  jury.  But  the 
circumstances  of  that  case  were  peculiar.]  Evidence  that  the  plaintiff  was 
jeered  at  at  a  public  meeting  is  admissible  to  show  that  his  neighbors  un- 
derstood the  libel  as  referring  to  him.^  So,  in  Du  Bost  v.  Beresford,*  Lord 
Ellenborough  held  that  the  declarations  made  by  spectators,  while  they 
were  looking  at  a  libellous  caricature,  were  admissible  in  evidence  to  show 
whom  the  figures  were  intended  to  represent. 

*  541    *  Proof  that  the  ivords  were  spoken  of  the  plaintiff  in  the  loay  of  his 

office,  profession,  or  trade. 

It  is  not  enough  for  the  plaintiff  to  prove  his  special  character,  and  that 
the  words  refer  to  himself;  he  must  further  prove  that  the  words  refer  to 
himself  in  that  special  character,  if  they  be  not  otherwise  actionable.  It  is 
a  question  for  the  jury  whether  the  words  were  spoken  of  the  plaintiff  in 
the  way  of  his  office,  profession,  or  trade.  It  is  by  no  means  necessary 
that  the  defendant  should  expressly  name  the  plaintiff's  office  or  trade  at 
the  time  he  spoke,  if  his  words  must  necessarily  affect  the  plaintiff's  credit 
and  reputation  therein.^  But  often  words  may  be  spoken  of  a  professional 
man  which,  though  defamatory,  in  no  way  affect  him  in  his  profession,  e.g., 
an  imputation  that  an  attorney  had  been  horsewhipped  off  the  course  at 
Doncaster,®  or  that  a  physician  had  committed  adultery.''  But  any  imputa- 
tion on  the  solvency  of  a  trader,  any  suggestion  that  he  had  been  bankrupt 
years  ago,  is  clearly  a  reflection  on  him  in  the  way  of  his  trade. ^ 

Evidence  of  Malice. 

The  judge  must  decide  whether  the  occasion  is  or  is  not  privileged,  and 
also  whether  such  privilege  is  absolute  or  qualified,  (a)     If  he  decide  that 

1  Bourke  v.  Warren,  2  C.  &  P.  310.  2  i  F.  &  F.  349. 

8  Cook  V.  Ward,  4  M.  &  P.  99  ;  6  Bing.  412.  ^  2  Camp.  511. 

6  Jones  V.  Littler,  7  M.  &  W.  423 ;  10  L.  J.  Ex.  171.  See  ante,  p.  124. 

6  Doyley  v.  Roberts,  3  Bing.  N.  C.  835  ;  5  Scott,  40  ;  3  Hodges,  154  ;  ante,  p.  75. 

7  Ayre  v.  Craven,  2  A.  &  E.  2  ;  4  N.  &  M.  220  ;  ante,  p.  76.  See  further,  ante,  pp. 
65-69. 

8  Ante,  pp.  78,  79. 

Met.  278  ;  Rangier  v.  Hummel,  37  Penn.  {a)  JIalice  may  be  proved  before  any 

St.   130  ;    Briggs  v.   Byrd,   11   Ind.   3.53  ;     attempt  is  made  to  rebut  it.     Langtou  v. 
White  V.  Sayward,   33  Maine,  322  ;  Gib-     Hagerty,  35  Wis.  150. 
son  V.  Williams,  4  Wend.  320  ;  Van  Vech- 
ten  V.  Hopkins,  5  Johns.  211. 

466 


EVIDENCE   OF   MALICE.  *  541 

the  occasion  was  one  of  absolute  privilege,  the  defendant  is  entitled  to 
judgment,  however  maliciously  and  treacherously  he  may  have  acted.  If, 
however,  the  privilege  was  only  qualified,  the  onus  lies  on  the  plaintiff  of 
proving  actual  malice.''  This  he  may  do  either  by  extrinsic  evidence  of 
personal  ill-feeling,^  or  by  intrinsic  evidence,  such  -as  the  exaggerated  lan- 
guage of  the  libel,  the  mode  and  extent  of  publication,  and  other  matters 
in  excess  of  the  privilege.^  Any  other  words  written  or  spoken  by  the  de- 
fendant of  the  plaintiff,  and  indeed  all  previous  transactions  or  com- 
munications *  between  the  parties,  are  evidence  on  this  issue.  The  *  5-42 
defendant  often  makes  the  mistake  of  cross-examining  the  plaintiff 
severely  on  such  previous  matters,  with  the  view  no  doubt  of  showing  that 
in  all  these  transactions  the  plaintiff  was  solely  to  blame.  The  jury,  as  a 
rule,  will  hold  both  parties  to  a  silly  quarrel  equally  blameworthy.  But 
even  if  they  adopt  the  defendant's  view  that  all  the  provocation  was  given 
by  the  plaintiff,  that  will  only  tell  against  the  defendant.  For  such  provo- 
cation must  produce  a  feeling  of  resentment,  or  at  least  of  injured  innocence, 
in  the  defendant's  mind  ;  and  if,  under  the  influence  of  such  feeling,  he 
writes  or  speaks  a  falsehood  of  his  late  antagonist,  such  falsehood  will 
probably  be  deemed  spiteful  and  malicious. 

A  plea  of  justification,  if  neither  abandoned  nor  proved,  will  be  evidence 
of  malice,  if  there  be  any  other  circumstance  in  the  case  suggesting  malice, 
but  not  otherwise.  Care  must  be  taken  in  citing  Simpson  v.  Robinson,* 
to  refer  to  the  judgments  of  the  Court ;  as  the  headnote  is  declared  mislead- 
ing by  Willes,  J.,  in  Caulfield  v.  Whitworth.^  Proof  tliat  the  plaintiff  at 
the  time  of  publication  knew  that  what  he  was  saying  or  writing  was  false, 
is  proof  positive  of  malice.  Proof  that  in  fact  the  words  were  false  is  no 
evidence  of  malice ;  the  falsity  of  the  words  is  indeed  always  presumed  in 
the  plaintiff 's  favor.  The  plaintiff's  counsel  may,  if  he  chooses,  in  the 
first  instance  rebut  the  justification  ;  but  it  is  generally  safer  to  leave  such 
proof  till  the  reply,  as  he  will  then  know  the  strength  of  defendant's  case. 
But  he  cannot,  in  the  absence  of  special  circumstances,  call  some  evidence 
to  rebut  the  justification  in  the  first  instance,  and  more  afterwards,  thus 
dividing  his  proof® 

If  no  justification  be  pleaded,  and  yet  the  plaintiff's  counsel  gives  evi- 
dence of  the  falsity  of  the  libel,  this  will  let  in  evidence  on  the  other  side 
of  the  truth  of  the  statement.'' 

The  plaintiff  cannot,  as  a  rule,  give  any  evidence  of  his  own  good  character.* 

1  Clark  V.  Molyneux,  (C.  A.)  3  Q.  B.  D.  2?7  ;  47  L.  J.  Q.  B.  2-30  ;  26  W.  R.  104  ; 
37  L.  T.  694.  '^  Ante,  pp.  271-277. 

3  Ante,  pp.  277-28S.  *  12  Q.  B.  511. 

8  16  W.  R.  936  ;  18  L.  T.  526.  «  Brown  v.  Murray,  R.  &  M.  254. 

1  Rer  Lord  EUenborough  in  Brown  v.  Croonie,  2  Sterk.  298,  299. 
8  Ante,  p.  298. 

467 


542  PEACTICE  AND  EVIDENCE. 


Evidence  of  Damage. 

The  plaintiff  need  give  no  evidence  of  any  actual  damage  where 

*  543    the  words  are  actionable  per  se  ;  he  will  nevertheless  be  *  entitled 

to  substantial  damages.^  But  if  the  plaintiif  has  suffered  any  spe- 
cial damage,  this  should  be  pleaded  and  proved.  It  cannot  be  proved  un- 
less it  has  been  pleaded.^ 

Where  words  are  not  actionable  per  se,  the  plaintiff  cannot  prove  a  gen- 
eral loss  of  custom ;  he  must  caU  individual  customers  and  friends  to  state 
why  they  have  ceased  to  deal  at  his  shop,  or  to  entertain  him.  Such  wit- 
nesses cannot,  however,  be  called  unless  their  names  have  been  set  out  in 
the  statement  of  claim  or  the  particulars.  It  must  also  be  proved  that  they 
heard  of  the  charge  against  the  plaintiff  from  the  defendant,  and  from  no 
one  else.  It  will  not  be  sufficient  to  prove  that  they  heard  a  rumor,  and 
that  the  defendant  set  such  a  rumor  afloat.^ 

The  plaintiff  may  also  call  evidence  in  aggravation  of  damages.* 

Nonsuit. 

At  the  close  of  plaintiff's  case,  the  defendant's  counsel  sometimes  sub- 
mits to  the  judge  that  there  is  no  case  for  liim  to  answer. 

The  judge  should  nonsuit  the  plaintiff,  or  direct  a  verdict  for  the  defend- 
ant :  — 

(1.)  If  there  is  no  evidence  that  the  defendant  published  the  words.  If 
the  Statute  of  Limitations  be  pleaded,  the  plaintiff  must  prove  a  publica- 
tion Avithin  the  period  prescribed. 

(2.)  If  there  is  no  evidence  that  the  words  refer  to  the  plaintiff. 

(3.)  If  the  words  proved  are  not  actionable  joer  se,  and  there  is  no  evi- 
dence of  any  special  damage. 

(4.)  If  the  words  are  actionable  by  reason  only  of  their  being  spoken  of 

the  plaintiff  in  the  way  of  his  pffice,   profession,  or  trade,  and  there  is  no 

evidence  that  the  words  were  so  spoken,  or  that  the  plaintiff  held  such 

office  or  exercised  such  profession  or  trade  at  the  time  of  publication. 

*  544        (5.)  If  the  words  are  not  actionable  in  their  natural  and  *  primary 

signification,  and  there  is  no  innuendo  ;  or  if  the  only  innuendo 
puts  upon  the  words  a  meaning  that  they  cannot  possibly  bear.  If,  how- 
ever, it  is  reasonably  conceivable  by  reason  of  any  facts  known  to  those 

1  Tripp  V.  Thomas,  3  B.  &  C.  427  ;  Ingram  v.  Lawson,  6  Bing.  N.  C.  212. 

2  As  to  what  constitutes  special  damage,  see  ante,  pp.  308  -  320.  As  to  wliat 
damage  is  too  remote,  see  ante,  pp.  321  -  333. 

3  See  ante,  pp.  314,  328  ;  Dixon  v.  Smith,  5  H.  &  N.  450  ;  29  L.  J.  Ex.  125  ; 
Bateman  v.  Lyali,  7  C.  B.  (N.  S.)  638. 

«  As  to  which  see  ante,  pp.  296-298. 
468 


NONSUIT.  *  54-i 

addressed,  that  they  might  have  put  upon  the  words  the  secondary  meaning 
ascribed  to  them  by  the  innuendo,  then  it  would  be  a  question  for  the  jury 
in  which  meaning  the  words  were  in  fact  understood.  AVhenever  the 
words,  though  primarily  not  actionable,  are  yet  reasonably  susceptible  of  a 
defamatory  meaning,  the  judge  should  not  stop  tlie'case ;  if  he  does  so,  the 
Divisional  Court  will  order  a  new  trial.^  "  It  is  only  Avhen  the  judge  is 
satisfied  that  the  publication  cannot  be  a  libel,  and  that,  if  it  is  found  by 
the  jury  to  be  such,  their  verdict  will  be  set  aside,  that  he  is  justified  in 
withdrawing  the  question  from  their  cognizance."  ^  Where  the  words  of 
the  libel  are  ambiguous,  allegorical,  or  in  any  way  equivocal,  and  the  jury 
have  found  that  they  were  meant  and  used  in  a  defamatory  sense,  the  Court 
will  not  set  aside  their  verdict,  unless  it  can  be  clearly  shown  that  on  read- 
ing the  whole  passage,  there  is  no  possible  ground  for  the  construction  put 
upon  it  by  the  jury.^  But  where  the  words  are  not  reasonably  capable  of 
any  defamatory  meaning,  there  the  judge  will  be  right  in  directing  a  non- 
suit.* 

(6.)  If  the  occasion  of  publication  was  one  of  absolute  privilege. 

(7.)  If  the  occasion  is  clearly  or  admittedly  one  of  qualified  privilege, 
and  there  is  no  evidence,  or  not  more  than  a  scintilla  of  evidence,  to  go  to 
the  jury  of  express  malice.  If  the  evidence  adduced  to  prove  malice  is 
equally  consistent  with  either  the  existence  or  the  non-existence  of  malice, 
the  judge  should  stop  the  case  ;  for  there  is  nothing  to  rebut  the  presumption 
which  the  privileged  occasion  has  raised  in  the  defendant's  favor.^ 

(8.)  Where,  however,  the  question  of  privilege  involves  *  matters    *  5-45 
of  fact  which  are  disputed,  it  will  be  for  the  jury  to  find  the  facts, 
and  for  the  judge  subsequently  to  decide  whether  on  the  facts  so  found  the 
occasion  is  privileged.® 

Under  the  former  practice  a  nonsuit  did  not  estop  the  plaintiff  from 
bringing  a  second  action,  though  such  second  action  miglit,  on  application, 
be  stayed  tiU  he  had  paid  the  costs  of  the  first.''  But  now,  by  Order  XLI. 
r.  6,  judgment  of  nonsuit  is  equivalent  to  a  judgment  on  the  merits  for  the 
defendant,  unless  the  Court  or  a  judge  otherwise  directs.     Whenever  the 

1  Hart  and  another  v.  Wall,  2  C.  P.  D.  146  ;  46  L.  J.  C.  P.  227  ;  25  W.  K.  373. 

2  Per  Kelly,  C.B.,  L.  R.  4  Exch.  at  p.  288. 

8  Hoare  v.  Silverlock,  12  Q.  B.  624  ;  17  L.  J.  Q.  B.  306  ;  Fray  v.  Fray,  17  C.  B. 
N.  S.  603 ;  34  L.  J.  C.  P.  45  ;  10  Jiir.  N.  S.  1153. 

*  Hunt  V.  Goodlake,  43  L.  J.  C.  P.  54 ;  29  L.  T.  472  ;  Mulligan  v.  Cole  and  others, 
L.  Pt.  10  Q.  B.  549  ;  44  L.  J.  Q.  B.  153  ;  33  L.  T.  12;  ante,  p.  117. 

6  Somemlle  v.  Hawkins,  10  C.  B.  583  ;  20  L.  J.  C.  P.  131;  15  Jur.  450  ;  Hanis 
V.  Thompson,  13  C.  B.  333. 

6  Baatsou  v.  Skene,  5  H.  &  N.  838  ;  29  L.  J.  Ex.  430  ;  6  Jur.  X.  S.  780  ;  2  L.  T. 
378. 

■?  Hoare  v.  Dickson,  7  C.  B.  164  ;  18  L.  J.  C.  P.  158  ;  Prowse  v.  Lo.xdale,  3  B.  &  S. 
896  ;  32  L.  J.  Q.  B.  227. 

469 


*  545  PRACTICE   AND   EVIDENCE. 

nonsuit  is  caused  merely  by  some  failure  in  the  formal  proof  of  plaintiff's 
case,  the  plaintiff's  counsel  should  apply  to  the  judge  to  direct  a  common 
law  nonsuit,  not  on  the  merits.  The  defendant  is  entitled  to  his  costs  on 
a  nonsuit,  unless  the  judge  expressly  orders  otherwise. 

The  judge  at  the  trial  has  full  power  to  amend  any  defect  or  error  in 
any  pleading  or  proceeding  on  such  terms  as  may  seem  just.i 

Evidence  for  the  Defendant. 

The  defendant,  as  we  have  seen,  is  entitled  to  have  the  whole  libel  read 
or  the  whole  of  the  conversation,  in  which  the  slander  was  uttered,  de- 
tailed in  evidence.  If  the  alleged  libel  refers  to  any  other  document,  the 
defendant  is  also  entitled  to  have  that  document  read,  as  part  of  the  plain- 
tiff's case.'"^  So  where  the  action  is  brought  for  a  criticism  on  the  plaintiff's 
book,  no  imputation  being  cast  on  him  personally,  it  was  held  that  the 
plaintiff  ought  to  put  in  the  book  criticised  as  part  of  his  own  case.^  This 
will  save  the  defendant  from  the  necessity  of  giving  any  evidence.  But 
where  a  paragraph  in  a  subsequent  number  of  a  newspaper  is  given  in 
evidence  by  the  plaintiff  to  show  malice,  the  rest  of  the  newspaper  is  no 
part  of  plaintiff's  case,  unless  it  refers  to  the  special  paragraph  put 

*  546    in.     The  defendant  is  therefore  not  *  entitled  to  have  other  pas- 

sages in  that  newspaper  read.'* 
The  defendant's  counsel  often  prefers  not  to  call  any  witnesses,  so  as  to 
have  the  last  word  with  the  jury.  He  must  rely,  instead,  on  the  cross- 
examination  of  the  plaintift^'s  witnesses.  These  should  often  be  cross- 
examined  not  only  as  to  the  facts  of  the  case,  but  also  "  to  credit ; "  that 
is,  they  should  be  cross-examined  as  to  matters  not  material  to  the  issue, 
with  a  view  of  sliaking  their  whole  testimony.  But  in  order  to  prevent 
the  case  from  thus  branching  out  into  all  manner  of  irrelevant  issues,  it  is 
wisely  provided  that  on  such  matters  the  defendant  must  take  the  witness's 
answer  :  he  cannot  call  any  evidence  to  contradict  it.  There  is  one  excep- 
tion. By  section  24  of  the  Common  Law  Procedure  Act,  1854,  if  a  wit- 
ness in  any  cause  be  questioned  as  to  whether  he  has  been  convicted  of  any 
felony  or  misdemeanor,  and  if  he  either  denies  the  fact,  or  refuses  to 
answer,  the  opposite  party  may  prove  such  conviction,  however  irrelevant 
the  fact  of  such  conviction  may  be  to  the  matter  in  issue  in  the  cause.* 
The  right  method  of  proving  a  conviction  at  the  Assizes  or  Quarter  Ses- 

1  Order  XXVII.  r.  6  ;  Order  LIX.  r.  2,  R.  S.  C,  April,  1880,  r.  44. 

2  Weaver  v.  Lloyd,  2  C.  &  P.  296  ;  Thornton  v.  Stephen,  2  M.  &  Rob.  45  ;  Hedley 
V.  Barlow  and  another,  4  F.  &  F.  227.  * 

3  Strauss  v.  Francis,  4  F.  &  F.  939,  1107. 

*  Darby  v.  Ouselej%  11  H.  &  N.  1  ;  25  L.  J.  Ex.  227. 
6  Ward  V.  Sinfield,  43  L.  T.  253. 

470 


EVIDENCE   FOE,   THE   DEFENDANT.  *  G46 

sions,  either  for  this  purpose,  or  as  evidence  under  a  plea  of  justification,  is 
by  a  certificate  under  the  Common  Law  Procedure  Act,  1854,  s.  25,  con- 
taining the  substance  and  effect  of  the  indictment  and  conviction,  but 
omitting  the  formal  parts.  If,  however,  the  conviction  was  at  petty  ses- 
sions only,  then  it  was  decided,  in  Hartley  v.  Hindmarsh,^  that  either  the 
record  itself  must  be  produced,  or  an  examined  copy  of  it.  This  involves 
the  trouble  and  expense  of  having  the  record  duly  made  up  for  the  pur- 
pose.^ But  since  that  decision,  the  Prevention  of  Crimes  Act,  1871,^  has 
become  law  :  and  though  the  Act  applies  entirely  to  criminal  proceedings, 
yet  s.  18  contains  the  words  "in  any  legal  proceeding  whatever."  As  a 
rule,  therefore,  no  objection  is  made  to  the  admissibility  in  civil  proceed- 
ings of  a  certificate  under  that  section  ;  although  the  point  has  never  yet 
been  decided,  and  is  certainly  open  to  argument. 

The  defendant  must  be  careful,  however,  not  to  increase,  by  such 
cross-examination,  the  amount  of  damages  that  may  be  *  given  *  547 
against  him.  Thus  where  the  libel  consisted  of  comments  in  a 
newspaper  on  a  criminal  trial,  in  which  the  plaintiff  was  acquitted,  and  the 
defendant's  counsel  put  to  the  plaintiff"  a  series  of  questions  tending  to  show 
that  he  really  had  been  guilty  of  the  crime  with  which  he  was  charged, 
such  a  course  of  cross-examination  was  held  a  serious  aggravation  of  the 
libel.^ 

Either  party  may  use  in  evidence  at  the  trial  any  one  or  more  of  the 
answers  of  the  opposite  party  to  interrogatories,  without  putting  in  the 
others  :  but  the  judge  may  direct  any  others  to  be  put  in.^ 

Where  the  words  are  actionable  only  because  they  were  spoken  of  the 
plaintiff  in  the  way  of  his  trade,  the  defendant  may  show  that  such  trade 
is  illegal ;  ®  and  it  is  no  objection  to  such  evidence  that  it  also  indirectly 
proves  the  truth  of  the  defendant's  words.'' 

Where  it  is  not  alleged  that  the  defendant  is  the  author  of  the  libel,  he 
may  give  evidence  to  show  that  he  published  it  innocently  M'ithout  any 
knowledge  of  its  contents,  as  where  a  porter  delivered  a  sealed  packet.®  But 
in  most  cases  such  evidence  will  only  tend  to  mitigate  the  damages ;  it 
will  not  be  a  defence  to  the  action.^ 

The  defendant's  counsel  may  also  urge  that  the  occasion  of  publication 
was  privileged.-"  If  the  facts  necessary  to  raise  this  defence  are  not  already 
in  evidence,  he  must  call  witnesses  to  prove  them.     Thus  it  is  often  neces- 

1  L.  R.  1  C.  P.  553  ;  35  L.  J.  M.  C.  255  ;  12  Jur.  N.  S.  502  ;  14  W.  R.  862  ;  13  L. 
T.  795.  2  Per  Byles,  J.,  L.  R.  1  G.  P.,  at  p.  556. 

3  34  &  35  Vict,  c.  112.  *  Risk  Allah  Bey  v.  Wliitchnrst,  18  L.  T.  615. 

6  Order  XXXI.  r.  23.  6  Hurst  v.  Bell,  1  Bing.  1. 

7  Manning  v.  Clement,  7  Bing.  362,  368  ■,  5  M.  &  P.  211. 

8  Day  V.  Bream,  2  M.  &  Rob.  54.  »  See  ante,  pp.  160,  384. 
1"  See  ante,  c.  VIII.,  pp.  182-263. 

471 


*  547  PRACTICE  AIsD   EVIDENCE. 

sary  to  put  the  defendant  himself  in  the  box  to  state  the  facts  as  they  were 
presented  to  hiin  at  the  date  of  pubhcation,  the  information  which  he 
received  and  on  which  he  acted,  and  all  surrounding  circumstances.  He 
will  also  state  that  he  acted  bond  fide,  and  under  a  sense  of  duty.  But 
there  is  danger  in  calling  the  defendant  in  such  a  case  :  he  will  be  severely 
cross-examined,  and  may  let  slip  some  observation  which  will  be  seized 
upon  as  evidence  of  malice.  It  is  better,  if  possible,  by  denying  the  fact 
of  publication,  to  compel  the  plaintitl"  to  call  those  to  wliom  the  defendant 
wrote  or  spoke,  and  to  elicit  from  them,  in  cross-examination,  circum- 
stances which  show  that  the  occasion  was  privileged.     Statements 

*  548    made  *  to  the  defendant  behind  the  plaintiff's  back,  and  acts  to 

which  he  was  no  party,  are  admissible  in  evidence  on  this  issue  to 
show  the  state  of  the  defendant's  mind  at  the  moment  when  he  spoke  or 
wrote  the  words. 

The  defendant  may  also  give  evidence  of  antecedent  conversations  and 
transactions,  or  other  circumstances  well  known  to  the  bystanders,  M'hich 
show  that  the  words  were  not  used  in  their  ordinary  signification.  Thus 
they  may  have  been  uttered  in  joke ;  or  the  preceding  part  of  the  conver- 
sation may  limit  or  qualify  the  words  sued  on.  But  the  defendant  cannot 
give  in  evidence  some  particular  transaction  which  he  had  in  his  mind  at 
the  time  he  spoke,  but  to  which  he  did  not  expressly  refer,  and  which  was 
unknown  to  the  person  addressed.^  For  the  question  which  the  jury  have 
to  determine  is  not  "  What  did  the  defendant  intend  % "  but  "  What  would 
a  reasonable  person  have  understood  from  the  language  used  ? "  So,  too, 
where  a  libel  is  unambiguous  in  itself,  and  does  not  refer  to  any  other 
writing,  the  defendant  cannot  use  any  other  writing  for  the  purpose  of 
explaining  away  its  meaning. 

The  defendant  may  also  prove  a  justification.  The  attempt,  if  unsuc- 
cessful, will  aggravate  the  damages.  Strict  proof  must  be  given  of  the 
whole  charge  made  and  of  the  precise  charge  made.  Sometimes  a  libel 
contains  two  or  more  distinct  and  severable  charges  against  the  plaintiff : 
if  so,  it  will  tend  in  mitigation  if  the  defendant  can  prove  any  one  of  such 
charges  true.'^  If  the  charge  made  against  tlie  plaintiff  is  that  he  was 
convicted  of  an  offence,  then  such  conviction  may  be  proved  in  the  manner 
stated.^  So,  too,  where  the  libel  consists  of  an  incorrect  statement  of  a 
conviction  of  the  plaintiff  by  a  magistrate,  the  plaintiff  may,  with  a  view 
of  the  assessment  of  damages,  enter  into  all  the  circumstaiices  which  led  to 
the  conviction,  although  such  evidence  tends  to  show  that  the  conviction 

1  Hankinson  v.  Bilby,  16  M.  &  W.  442  ;  2  C.  &  K.  440  ;  Martin  v.  Loei,  2  F.  & 
F.  654  ;  ante,  pp.  107-9.  ^  See  ante,  p.  176. 

8  Ante,  p.  546.     See  Alexander  i;.  North-Eastem  Railway  Co.,  6  B.  &  S.  340;  34 
L.  J.  Q.  B.  152  ;  13  W.  R.  651. 
472 


WITHDRAWING   A   JUROR.  *  548 

was  erroneous.!     If,  however,  the  imputation  is  that  the  plaintiff  has  com- 
mitted a  crime,  then  the  charge  must  be  proved  as  strictly  as  on  an 
indictment  for  the  same  offence.     And  here,  *  the  fact  that  the    *  549 
plaintiff  had  been  previously  tried  and  acquitted,  or  convicted,  is 
irrelevant ;  and  the  record  of  the  criminal  trial  is  not  admissible  in  evi- 
dence either  way,  for  the  parties  are  not  the  same.^ 

Where  no  justification  is  pleaded,  the  defendant  can  give  no  evidence  of 
the  truth  of  his  words,  not  even  in  mitigation  of  damages.^  But  evidence  ad- 
missible and  pertinent  under  another  issue  cannot  be  excluded  merely  be- 
cause it  happens  incidentally  to  prove  the  truth  of  the  libel.*  Thus,  if  the 
defendant  has  pleaded  privilege,  he  may  show  that  he  reasonably  and  honcL 
fide  believed  in  the  truth  of  the  charge  he  made,  and  it  is  no  objection  that 
the  grounds  of  his  belief  were  so  forcible  as  to  convince  every  reasonable 
man  of  the  plaintiff's  guilt. 

If  the  present  defendant  is  liable,  the  fact  that  some  one  else  is  also  liable 
is  of  course  no  defence.  The  plaintiff  may  at  his  option  sue  one  or  all  in 
the  same  or  in  different  actions.  And  the  fact  that  such  other  actions  are 
pending  should  not  be  mentioned  to  the  jury.  Thus,  if  an  author  be  sued 
for  a  libel  he  has  composed,  it  is  no  defence  that  the  publisher  has  been 
already  sued  and  heavy  damages  recovered  against  him  in  another  action.^ 
So  too,  that  others  have  previously  published  the  same  charges  against  the 
plaintiff  and  have  not  been  sued,  is  no  justification  for  the  defendant's  repub- 
lication. Still  less  is  it  any  evidence  of  the  truth  of  such  charges.®  If, 
however,  the  libel  purports  on  the  face  of  it  to  be  derived  from  a  certain 
newspaper,  the  defendant  may  prove  in  mitigation  of  damages  that  a  para- 
graph to  the  same  effect  had  appeared  in  that  newspaper.''  The  defendant 
may  not  give  evidence  that  there  was  a  rumor  current  to  the  same  effect 
as  the  words  he  spoke.* 

*  Withdrawing  a  Juror.  *  550 

Actions  of  defamation  are  often  compromised  before  the  judge  comes 
to  sum  up  the  evidence.     A  juror  is  often  withdrawn,  sometimes  at  the 

1  Gwynn  v.  South-Eastem  Railway  Co.,  18  L.  T.  738. 

2  Justice  V.  Gosling  and  others,  12  C.  B.  39  ;  21  L.  J.  C.  P.  94  ;  England  v.  Bourke, 
3  Esp.  80. 

8  Smith  V.  Richardson,  Willes,  20. 

*  Manning  v.  Clement,  7  Bing.  362,  368  ;  5  M.  &  P.  211. 

5  Frescos  v.  May,  2  F.  &  F.  123  ;  Harrison  v.  Pearce,  1  F.  &  F.  567  ;  32  L.  T.  (Old 
S.)  298. 

6  R.  V.  Newman,  1  E.  &  B.  268  ;  21  L.  J.  Q.  B.  156  ;  3  C.  &  K.  252  ;  Dears.  C.  C. 
85  ;  17  Jur.  617. 

T  Wyatt  V.  Gore,  1  Holt,  N.  P.  303  ;  see  also  ante,  p.  302,  3. 
8  Ante,  pp.  304-6.     As  to  the  proof  of  a  plea  under  Lord  Camphell's  Act  see  ante, 
p.  300  ;  —  as  to  other  evidence  in  mitigation  of  damages,  see  ante,  pp.  301-8. 

473 


*  550  PEACTICE  AND   EVIDENCE. 

suggestion  of  the  judge.  This  means  that  neither  party  cares  for  the  case 
to  proceed.  If  no  special  terms  are  agreed  on,  the  effect  of  withdrawing  a 
juror  is  that  the  action  is  at  an  end,  that  no  fresh  action  can  be  brought  on 
the  same  libel  or  slander,  and  that  each  party  pays  his  own  costs.^  If  any 
other  terms  be  agreed  on,  they  should  be  indorsed  on  counsels'  briefs,  and 
each  indorsement  signed  by  the  leading  counsel  on  both  sides.  The  terms 
of  such  a  compromise  will  be  strictly  enforced,  if  necessary  by  an  order  of 
the  Court. 2  Counsel  have  full  authority  to  make  such  a  compromise,  unless 
expressly  forbidden  to  do  so  by  the  client  at  the  time.^ 

Summing-up. 

The  judge  now  sums  up  the  facts  of  the  case  to  the  jury,  and  directs 
them  as  to  the  law.  He  is  not  bound  to  state  to  the  jury,  as  matter  of 
law,  whether  the  publication  complained  of  be  a  libel  or  not.^  The  proper 
course  is  for  him  to  define  what  is  a  libel  in  point  of  law,  and  to  leave  it  to 
the  jury  to  say  whether  the  publication  in  question  falls  within  that  defi- 
nition.^ The  jury  are  bound  to  take  the  judge's  definition  of  a  libel,  and 
decide  in  accordance  therewith.®  Though  the  question  for  the  jury  "  Libel 
or  no  libel "  is  not  precisely  the  same  as  "  What  is  the  legal  definition  of  an 
actionable  libel?"''  The  question  for  the  jury  is  not  "Did  the  defendant 
intend  to  injure  the  plaintiff? "  but,  "Has  he  in  fact  injured  the  plaintiff's 
reputation  1 " 

*  551        *  Where  other  libels,  &c.,  have  been  given  in  evidence  to  prove 

express  malice,  the  judge  should  caution  the  jury  not  to  give  any 
damages  in  respect  of  them.^  But  the  omission  of  the  judge  to  give  such 
caution  is  not  a  misdirection.^ 

Either  party  had  formerly  the  power  of  excepting  to  the  direction  of 
the  judge  at  the  trial  on  a  point  of  law.  This  was  done  by  tendering  to 
the  judge  a  biU  of  exceptions  before  verdict,  which  was  then  annexed  to  the 
record,  so  that  the  point  could  be  raised  at  once  in  a  Court  of  Error.  But 
now,  by  Order  LVIII.  r.  1,  bills  of  exceptions  and  proceedings  in  error  are 
abolished.    But  by  s.  22  of  the  Judicature  Act,  1875,  a  very  similar  method 

1  See  Strauss  v.  Francis,  4  F.  &  F.  939,  1107  ;  15  L.  T.  674. 

2  Riley  V.  Byrne,  2  B.  &  Ad.  779  ;  Tardrew  v.  Brook,  5  B.  &  Ad.  880. 

8  Strauss  v.  Francis,  L.  R.  1  Q.  B.  379  ;  35  L.  J.  Q.  B.  133  ;  12  Jur.  N.  S.  486  ; 
14  W.  R.  634  ;  14  L.  T.  326  ;  Davis  v.  Davis,  13  Ch.  D.  861  ;  28  W.  R.  345. 

4  Baylis  v.  Lawrence,  11  A.  &  E.  920  ;  Hearne  ■;;.  Stowell,  12  A.  &  E.  719  ;  11  L.  J. 
Q.  B.  25  ;  4  P.  &  D.  696. 

6  Pamiiter  v.  Coupland  and  another,  6  M.  &  W.  105. 
«  Levi  v.  Milne,  4  Bing.  195  ;  12  Moore,  418. 

7  Per  Barry,  J.,  in  Stannus  v.  Finlay,  Ir.  R.  8  C.  L.  264. 

8  Pearson  v.  Lemaitre,  5  M.  &  Gr.  700. 

3  Darbv  v.  Ouseley,  1  H.  &  N.  1  ;  25  L.  J.  Ex.  229. 

474 


VERDICT.  *  551 

is  provided.  That  section  enacts  that  nothing  in  either  Judicature  Act 
"  shall  take  away  or  prejudice  the  right  of  any  party  to  any  action  to  have 
the  issues  for  trial  by  jury  submitted  and  left  by  the  judge  to  the  jury  be- 
fore whom  the  same  shall  come  for  trial,  with  a  proper  and  complete  direc- 
tion to  the  jury  upon  the  law,  and  as  to  the  evidence  applicable  to  such 
issues.  Provided  also  that  the  said  right  may  be  enforced  by  motion  in  the 
Court  of  Appeal  founded  upon  an  exception  entered  upon  or  annexed  to 
the  record." 

Thus,  whenever  the  judge,  on  a  point  of  law,  directs  a  verdict  to  be  en- 
tered for  either  party,  the  other  party  may  still  tender  exceptions  to  such 
ruling,  and  the  judge  should  then  be  asked  to  order  such  exceptions  to  be 
annexed  to  the  record.  The  proper  mode  of  bringing  before  the  Court  of 
Appeal  exceptions  to  the  ruling  of  a  judge  in  directing  a  jury,  is  to  give  an 
ordinary  notice  of  motion  of  appeal  against  the  judge's  ruling,  stating  the 
point  intended  to  be  raised.^  Such  exceptions  must  be  tendered  before 
verdict,  so  as  to  give  the  judge  an  opportunity  of  reforming  his  direction, 
if  he  thinks  fit.^ 

Verdict. 

The  jury  now  consider  their  verdict.     They  should  look  to  the 
whole  of  the  publication  to  see  whether  it  is  calculated  to  *  injure    *  552 
the  plaintiff's  character,  not  study  detached  and  isolated  sentences. 
The  conclusion  may  modify  the  commencement,  and  if  so,  "  the  bane  and 
antidote  must  be  taken  together."  ^ 

Where  the  words  are  actionable  per  se,  the  amount  of  damages  is  entirely 
a  matter  for  the  jury.  They  may  consider  the  libel  itself,  the  mode  and 
extent  of  publication,  and  the  express  malice  evinced  by  the  defendant. 
Also  in  an  action  against  a  newspaper,  they  may  have  regard  to  the  gross 
neghgence  shown  by  the  editor  in  allowing  the  libel  to  appear  in  print.* 
The  jury  must  assess  the  damages  once  for  all,  as  no  fresh  action  can  be 
brought  for  any  subsequent  damage.^  And  in  assessing  the  damages,  the 
jury  should  not  regard  at  all  the  question  of  costs.^ 

1  Cheese  v.  Lovejoy,  (C.A.)  2  P.  D.  161  ;  46  L.  J.  P.  D.  &  A.  67  ;  25  W.  R.  453  ; 
37  L.  T,  294. 

2  Rutter  V.  Chapman,  8  M.  &  W.  38  ;  Armstrong  v.  Lewis,  2  Cr.  &  M.  274. 

s  Per  Alderson,  B.,  in  Chalmers  v.  Payne,  2  C.  M.  &  R.  159  ;  see  also  Hunt  v.  Algar 
and  others,  6  C.  &  P.  245  ;  R.  v.  Lambert  and  Perry,  2  Camp.  398. 

4  Smith  V.  Harrison,  1  F.  &  F.  565. 

6  Fitter  v.  Veal,  12  Mod.  542  ;  B.  N.  P.  7  ;  Gregorj'  and  another  v.  Williams,  1  C. 
&  K.  568. 

6  Poole  V.  ^^liitcomb,  12  C.  B.  N.  S.  770  ;  Levi  v.  Milne,  4  Bing.  195  ;  12  Moore, 
418. 

475 


*  552  PRACTICE  AND   EVIDENCE. 

Judgment. 

The  judge  at  the  trial  may 

(1.)  direct  that  judgment  be  entered  for  any  or  either  party, 

or  (2.)  adjourn  the  case  for  further  consideration, 

or  (3.)  leave  any  party  to  move  for  judgment. 

1S.0  judgment  shall  be  entered  after  a  trial  without  the  order  of  a  Court 
or  judge.i  From  the  repeal  of  the  former  rule  22,  it  may  be  inferred  that 
the  judge  should  no  longer  enter  judgment,  subject  to  leave  to  move.  At 
all  events  it  is  not  the  practice  now  to  give  either  party  leave  to  move. 

If  the  judge  direct  judgment  to  be  entered  for  either  party  absolutely, 
then  if  the  officer  present  at  the  trial  be  not  the  proper  officer  to  enter 
judgment,  the  associate's  certificate  will  be  authority  to  the  proper  officer,^ 
a  full  copy  of  the  pleadings  being  dehvered  to  him,  to  enter  judgment  in  a 
book  kept  for  the  purpose.^  And  thereupon  execution  Avill  issue  forthwith, 
unless  it  be  stayed.'*    There  is  no  need  to  ask  for  speedy  execution. 

*  553    *  Where  the  judge  leaves  either  party  to  move  for  judgment,  the 

plaintiff  should  set  the  case  down  and  give  notice  of  motion  within 
ten  days  after  the  trial ;  if  he  omit  to  do  so  the  defendant  may  do  so  him- 
self.^    At  least  two  clear  days'  notice  of  motion  must  be  given.* 

If  the  plaintiff  move  for  judgment,  the  judge  has  full  power  on  that 
motion  to  direct  judgment  to  be  entered  for  the  defendant. 

Further  considerations  and  motions  for  judgment  must  now  take  place 
before  the  judge  who  tried  the  case.'^  They  are  in  fact  but  a  prolongation 
of  the  Nui  Prills  trial.  The  judge  has  no  longer  any  power,  apparently, 
to  reserve  any  point  for  the  consideration  of  a  Divisional  Court,  or  to 
direct  any  point  to  be  argued  before  a  Divisional  Court.^  He  must  decide 
the  point  himself  one  way  or  the  other,  and  leave  the  parties  to  appeal  if 
they  wish  to  do  so. 

Costs. 

There  is  no  longer  any  need  to  ask  for  a  certificate  for  the  general  costs 
of  the  suit.  The  successful  party  now  gets  his  costs  as  of  right,  unless  the 
judge  deprives  him  of  them  for  good  cause  shown. ^  Thus  if  there  be  a 
verdict  for  the  plaintiff  for  nominal  damages  only,  his  counsel  should  say 

1  Order  XXXVI.  r.  22a,  R.  S.  C.  December,  1876,  r.  3. 

2  Order  XXXVI.  r.  24.  3  Order  XLI.  r.  1. 
<  Order  XLII.  r.  15.                                                           5  Order  XL.  r.  3. 

6  Order  LIII.  r.  4  ;  Eoupell  v.  Pareons,  24  W.  R.  269  ;  34  L.  T.  56. 

7  Appellate  Jurisdiction  Act,  1876,  39  &  40  Vict.  c.  59,  s.  17  ;  Order  LVIIa.,  R.  S. 
C,  December,  1876,  rr.  8,  9. 

8  Judicature  Act,  1873,  s.  46  ;  1875,  s.  22. 

9  Order  LV.  r.  1,  ante,  c.  XI.  p.  334. 

476 


PROCEEDINGS   AFTER   JUDGMENT.  *  553 

notliing  about  costs ;  it  is  the  duty  of  the  defendant's  counsel  to  ask  the 
judge  to  interfere.  But  it  is  otherwise  with  special  costs,  such  as  costs  of 
a  special  jury,  of  a  commission  to  take  evidence  abroad,  or  of  photographic 
copies  of  the  libel :  the  party  who  has  required  these  will  have  to  pay  for 
them  unless  he  obtain  an  order  for  their  allowance  on  taxation  before 
judgment  is  entered.  ^  If  a  married  woman  having  general  separate  estate 
fail  in  an  action  of  libel,  she  may  be  condemned  in  costs,  although  her 
husband  was  joined  with  her  as  a  co-plaintifi"  or  a  co-defendant.^ 

*  Proceedings  after  Jxidgment.  *  554 

After  a  judgment  lias  been  entered  by  order  of  the  judge,  there  seem 
now  to  be  only  three  possible  courses  open  to  the  unsuccessful  party.  He 
may 

(1.)  Move  in  the  Divisional  Court  for  a  new  trial  under  Order  XXXIX. 

(2.)  Move  in  the  Court  of  Appeal  to  set  aside  the  judgment  on  the 
ground  that  on  the  verdict,  as  entered,  the  judgment  directed  was  wrong,^ 
or  upon  exceptions  annexed  to  the  record.'* 

(3.)  Apply  to  a  Master  at  Chambers  under  Order  XLII.  r.  22,  for  a  stay 
of  execution  or  for  other  relief  against  such  judgment,  upon  the  ground 
of  facts  which  have  arisen  too  late  to  be  pleaded.  This  is  in  lieu  of  the 
antiquated  proceeding  by  auditd  quereld :  but  it  can  very  seldom  be  neces- 
sary to  make  such  an  application,  regard  being  had  to  the  extensive  powers 
given  by  Order  XX.  of  pleading  matters  which  have  arisen  since  action 
brought. 

There  seems  to  be  now  no  case  in  which,  after  judgment  entered,  a 
party  can  move  the  Divisional  Court  for  judgment.  Order  XL.  r.  2  is 
practically  abolished  by  Order  XXXVI.  r.  22a,  E.  S.  C,  Dec.  1876,  r.  3, 
which  seems  to  take  away  from  the  judge  the  power  of  ordering  judgment 
to  be  entered  subject  to  leave  to  move.  Motions  for  judgment  must  in 
fact  be  made  either  to  the  judge  who  tried  the  case,  sitting  alone,  or  to  tlie 
Court  of  Appeal.^  Motions  for  judgment  non  obstante  veredicto  and  motions 
in  arrest  of  judgment  are  now  obsolete,  if  not  abolished.  Nor  is  any 
repleader  any  longer  necessary,  as  by  Order  XL.  r.  10  the  Court  has  power, 

1  Ante,  p.  337. 

2  Newton  and  wife  v.  Boodle  and  others,  4  C.  B.  359  ;  18  L.  J.  C.  P.  73  ;  Jlorris 
V.  Freeman,  3  P.  D.  65  ;  47  L.  J.  P.  D.  &  A.  79  ;  27  W.  R.  62  ;  39  L.  T.  125  ;  and 
see  the  remarks  of  Jessel,  M.R.,  in  Besant  v.  Wood,  12  Ch.  D.  630  ;  40  L.  T.  453. 

8  Order  XL.  r.  4«,  R.  S.  C,  Dec.  1876,  r.  7. 

*  Judicature  Act,  1875,  s.  22,  ante,  p.  551. 

5  See  Order  LVIIa,  R.  S.  C,  Dec.  1876,  rr.  8,  9,  which  altered  the  previous  prac- 
tice in  order  to  give  effect  to  the  Appellate  Jurisdiction  Act,  1876,  39  &  40  Vict.  c.  59, 
s.  17. 

477 


*  554  PRACTICE  AND  EVIDENCE. 

upon  a  motion  for  judgment  or  for  a  new  trial,  to  direct  issues  or  questions 
to  be  tried  or  determined. 

There  has  sometimes  been  a  difficulty  in  deciding  whether  application 

should  be  made  to  the  Divisional  Court  or  to  the  Court  of  Appeal.     The 

most  obvious  test  appears  to  be  this  :  —  Does  the  party  applying  complain 

of  the  verdict,  or  of  the  judgment  entered  on  that  verdict?     If  his 

*  555    contention  is  that  *  accepting  the  findings  of  the  jury  as  correct, 

still  the  judgment  as  entered  is  wrong,  then  he  must  move  the 
Court  of  Appeal.  If  on  the  other  hand  he  complains  of  the  verdict  as 
recorded,  then,  although  the  judge  directed  such  verdict,  he  must  apply  to 
the  Divisional  Court  within  the  time  allowed  for  a  new  trial.^ 

Whenever  the  judgment  is  right,  if  the  verdict  is  right,  the  application 
must  be  to  the  Divisional  Court ;  for  the  Court  of  Appeal  has  no  power  in 
the  first  instance  to  review  the  finding  of  a  jury.^  Thus  if  on  the  trial  of 
an  action  for  libel,  the  counsel  for  the  defendant  asks  the  judge  to  nonsuit 
the  plaintiff  or  to  direct  a  verdict  for  the  defendant,  on  the  ground  that 
tliere  is  no  evidence  to  go  to  the  jury  in  support  of  the  plaintiff"'s  case, 
then,  whether  the  judge  grants  or  refuses  this  application,  the  only  course 
by  which  his  decision  can  be  reviewed  is  by  motion  for  a  new  trial  in  the 
Divisional  Court.^  A  nonsuit  is  for  this  purpose  considered  as  of  the  same 
effect  as  a  judgment  directed  by  the  judge  in  the  defendant's  favor : 
although  in  the  former  case  there  is  no  finding  by  the  jury.'*  But  Thesiger, 
L.J.,  guarded  himself  from  giving  any  opinion  as  to  the  case  where  a  non- 
suit is  directed  on  admitted  facts  entered  on  the  judge's  notes.  Here,  as 
the  jury  decide  nothing,  it  is  substantially  a  trial  by  the  judge  alone,  and 
if  so,  the  application  should  perhaps  be  made  to  the  Court  of  Appeal. 

These  distinctions  are  important,  because  the  parties,  as  a  rule,  do  not 
make  up  their  mind  to  move  for  a  new  trial  till  after  it  is  too  late  to  make 
the  application,  and  then  endeavor  to  appeal  instead.  But  apart  from  the 
rules  as  to  time,  the  matter  is  one  rather  of  name  than  of  substance.  For 
when,  in  an  action  tried  by  a  jury,  the  judge  has  given  judgment  for  one 
party  on  the  findings  of  the  jury,  and  the  other  party  has,  without  appeal- 
ing from  such  judgment,  moved  the  Divisional  Court  for  a  new 

*  556    trial  either  on  the  ground  of  misdirection  by  *  the  judge,  or  on  the 

ground  that  the  findings  are  against  the  weight  of  evidence ;  the 
Divisional  Court  has  power  under  Order  XL.  r.  10,  on  the  argument,  to  set 

1  Yetts  and  another  v.  Foster  (C.  A.),  3  C.  P.  D.  437  ;  26  W.  R.  745  ;  38  L.  T.  742. 

2  Davies  and  others  v.  Felix  and  others  (C.  A.),  4  Ex.  D.  32  ;  48  L.  J.  Ex.  3  ;  27 
W.  R.  108  ;  39  L.  T.  322. 

^  Davies  and  others  v.  Felix  and  others,  supra  ;  Capital  and  Counties  Bank  v.  Henty 
and  Sons,  28  W.  R.  490  ;  42  L.  T.  314  ;  (C.  A.)  5  C.  P.  D.  514  ;  49  L.  J.  C.  P.  830  ; 
28  W.  R.  851  ;  Etty  v.  Wilson  (C.  A.),  3  Ex.  D.  359  ;  47  L.  J.  Ex.  664  ;  39  L.  T.  83. 

*  Etty  V.  Wilson,  supra. 

478 


APPLICATION    FOR   A   NEW   TRIAL.  *  556 

aside  the  judgment  entered  and  enter  final  judgment  for  the  party  unsuc- 
cessful at  the  trial,  if  they  are  of  opinion  that  the  findings  and  the 
judgment  at  the  trial  cannot  stand,  and  if  they  have  before  them  all  the 
materials  necessary  for  finally  determining  the  questions  in  dispute. ^  So, 
too,  if  the  unsuccessful  party  moves  for  judgment  in  the  Court  of  Appeal, 
and  that  Court  is  dissatisfied  with  the  findings  as  to  any  matter  of  fact, 
it  may,  in  a  proper  case,  set  aside  the  verdict  and  the  judgment  entered 
thereon,  and  direct  that  a  new  trial  shall  be  had.^ 

Application  for  a  New  Trial. 

Applications  for  new  trials  shall  be  by  motion  [for  an  order]  calling  on 
the  opposite  party  to  show  cause  at  the  expiration  of  eight  days  from  the 
date  of  the  order,  or  so  soon  after  as  the  case  can  be  heard,  why  a  new 
trial  should  not  be  directed.  Such  motion  shall  be  made  within  the  times 
following,  unless  the  Court,  or  a  judge,  shall  enlarge  the  time  :  — 

An  application  to  a  Divisional  Court  for  a  new  trial,  if  the  trial  has 
taken  place  in  London  or  Westminster,  shall  be  made  within  four  days 
after  the  trial,  or  on  the  first  subsequent  day  on  which  a  Divisional  Court, 
to  which  the  application  may  be  made,  shall  have  actually  sat  to  hear 
motions.  If  the  trial  has  taken  place  elsewhere  than  in  London  or  Mid- 
dlesex, the  motion  shall  be  made  within  seven  days  after  the  last  day  of 
sitting  on  the  circuits  for  England  and  Wales  during  which  the  action  shall 
have  been  tried,  or  within  the  first  four  days  of  the  next  following  sittings, 
if  such  day  occurs  during  or  within  a  week  immediately  before  vacation.^ 

Where  an  action  is  commenced  in  one  of  the  Common  Law  Divisions, 
and  the  trial  takes  place  before  a  judge  of  another  Division,  the  cause 
shall  from  that  time  be  transferred  to  the  Division  of  which  such 
judge  is  a  member.*  *  Any  application  for  a  new  trial  must  be  *  557 
made  to  a  Divisional  Court  of  that  division,  if  the  trial  was  by  a 
jury.  If,  however,  the  trial  was  by  the  judge  without  a  jury,  the  appli- 
cation for  a  new  trial  must  be  made  direct  to  the  Court  of  Appeal.^ 

If  a  primd  facie  case  be  made  out,  an  order  nisi  will  be  granted,  a  copy 
of  which  must  be  served  on  the  opposite  side  within  foi;r  days.®  Such 
order  nisi  will  be  a  stay  of  proceedings  unless  a  special  order  be  made  to 
the  contrary.''     The  grounds  on  which  such  order  is  granted  should  be 

1  Hamilton  &  Co.  v.  Johnson  &  Co.  (C.  A. ),  5  Q.  B.  D.  263  ;  49  L.  J.  Q.  B.  155  ; 
28  W.  R.  879  ;  41  L.  T.  461. 

2  Order  LVIII.  r.  5a,  R.  S.  C,  April,  1879,  r.  8. 

8  Order  XXXIX.  r.  lb,  R.  S.  C,  March,  1879,  r.  6;  Grant  v.  Holland,  49  L.  J. 
Q.  B.  800  ;  29  W.  R.  32. 

4  Order  V.  r.  4a,  R.  S.  C,  March,  1879,  r.  3. 
6  Order  XXXIX.  r.  la,  R.  S.  C,  Dec.  1876,  r.  5. 
6  Order  XXXIX.  r.  2.  7  Tb.  r.  5. 

479 


*557  PEACTICE  AND  EVIDENCE. 

stated  in  it.     After  full  argument  the  order  will  be  either  discharged  or 
made  absolute. 

An  application  for  a  new  trial  may  be  made  on  the  ground  that  the  ver- 
dict is  against  the  weight  of  evidence,  that  the  damages  are  excessive  or 
inadequate,  or  on  the  ground  of  misdirection  or  surprise.  That  no  notice 
of  trial  was  given,  or  that  the  jury  misbehaved,  may  also  be  ground  for  a 
new  trial. 

But  a  new  trial  will  not  be  granted  on  the  ground  of  misdirection  or  im- 
proper admission  or  rejection  of  evidence,  if  the  party  showing  cause  can 
satisfy  the  Court  that  no  substantial  wrong  or  miscarriage  has  been  thereby 
occasioned.^  And  then  the  Court  may  grant  a  new  trial  as  to  so  much  of 
the  matter  only  as  the  miscarriage  affects,  without  interfering  with  the  de- 
cision upon  any  other  question.^  So  too  the  Court  may  grant  a  new  trial 
as  against  one  defendant  without  granting  it  as  to  all ;  though  notice  of  the 
order  nisi  must  be  served  on  all.^ 

The  question  of  libel  or  no  libel  is  pre-eminently  one  for  a  jury ;  the 
Court  will  rarely  interfere  to  set  aside  a  verdict  or  grant  a  new  trial  on  the 
ground  that  the  verdict  was  against  the  weight  of  evidence;  especially 
where  the  question  left  to  the  jury  was  whether  the  matter  complained  of 
was  or  was  not  fair  comment  on  the  acts  of  a  public  man.'*  And  whenever 
the  words  are  fairly  susceptible  both  of  an  innocent  and  of  an  ac- 
*  558  tionable  meaning,  the  finding  *  of  the  jury  is  final ;  whichever 
construction  they  may  have  placed  upon  the  words  will  be  upheld.* 
'*  The  Court  never,  or  very  rarely,  grants  new  trials  in  actions  for  words."  * 

A  new  trial  will,  however,  be  granted  when  the  matter  complained  of 
is  clearly  libellous,  and  there  is  no  question  as  to  the  fact  of  publication,  or 
as  to  its  application  to  the  plaintiff,  and  yet  the  jury  have  perversely  found 
a  verdict  for  the  defendant,  in  spite  of  the  summing-up  of  the  learned  judge.'' 
But  unless  the  jury  are  manifestly  wrong,  unless  the  Court  can  say  with 
certainty  that  there  has  been  a  miscarriage  of  justice,  no  new  trial  will  be 
granted.^     If  the  judge  directs  the  jury  that  the  publication  is  in  law  a 

1  Order  XXXIX.  r.  3  ;  Anthony  r.  Halstead,  37  L.  T.  433  ;  Faund  v.  Wallace,  35 
L.  T.  361. 

2  Marsh  v.  Isaacs,  45  L.  J.  C.  P.  505. 

8  Price  V.  Harris,  10  Bing.  331  ;  Pumell  v.  G.  W.  Ey.  Co.  and  Harris  (C.  A.),  1 
Q.  B.  D.  636  ;  45  L.  J.  Q.  B.  687  ;  24  W.  R.  720,  909  ;  35  L.  T.  605. 

*  Odger  V.  Mortimer,  28  L.  T.  472. 

6  Per  Cur.  in  Burgess  v.  Bracher  (1724),  8  Mod.  240  ;  2  Ld.  RajTn.  1366;  1  Stra. 
594  ;  Walter  v.  Beaver,  and  Naden  v.  Micocke  (1684),  3  Lev.  166  ;  Sir  T.  Jones,  235  ; 
2  Ventr.  172  ;  3  Salk.  325. 

6  Per  Holt,  C.J.,  Anon.  (1696),  2  Salk.  644. 

7  Levi  V.  Milne,  4  Bing.  195,  ante,  p.  130  ;  Hakewell  v.  Ingram,  2  C.  L.  Pi.  ]397. 

8  Per  Tindal,  C.J.,  in  Broome  v.  Gosden,  1  C.  B.  731. 

480 


APPLICATION   FOR   A  NEW  TEIAL.  *  558 

libel,  and  the  Court  above  hold  that  it  is  not,  a  new  trial  will  be  granted 
on  the  ground  of  misdirection.^ 

A  new  trial  will  not  be  granted  on  the  ground  tliat  the  jury  expressed 
an  opinion  during  the  judge's  sumruing-up  inconsistent  with  their  subse- 
quent verdict.'^ 

In  actions  of  defamation  the  Court  very  rarely  grants  a  new  trial  on  the 
ground  that  the  damages  are  either  too  small  or  too  great.  Still  there  is  no 
inflexible  rule  on  the  subject.  Scroggs,  J.,  indeed,  contended  in  Lord 
Townshend  v.  Dr.  Hughes,^  that  the  Court  had  no  power  to  order  a  new 
trial  on  the  ground  that  the  damages  (4000^.)  were  excessive ;  but  Atkins, 
J.,  was  of  the  contrary  opinion,  and  gave  an  instance  in  which  the  Court 
of  Queen's  Bench  had  done  so.  The  Court  however  declined  to  exercise 
their  power  both  in  that  case  and  in  Highmore  v.  Earl  and  Countess  of 
Harrington,*  where  750Z.  damages  were  awarded.  A  new  trial  will  only  be 
granted  where  the  amount  of  damages  is  so  large  as  to  satisfy  the  Court 
that  the  jury  acted  perversely  and  with  partiality,  or  grossly  misconceived 
the  case  on  a  matter  of  principle.  Whenever  there  is  any  evidence 
*  of  express  malice,  the  jury  are  entitled  to  give  vindictive  dam-  *  559 
ages. 

So,  too,  there  is  no  inexorable  rule  of  practice  which  precludes  the  Court 
from  granting  a  new  trial  on  account  of  the  smallness  of  damages.  In 
Kelly  V.  Sherlock,^  a  rule  nisi  was  granted  on  that  ground,  though  it  was 
discharged  on  the  argument.  There  seems  to  be  no  case  reported  in  which 
a  rule  for  a  new  trial  has  been  made  absolute  on  this  ground  in  an  action 
of  libel ;  but  in  an  action  of  slander  a  rule  for  a  new  trial  was  made  abso- 
lute, Avhere  the  smallness  of  the  amount  recovered  {\d.)  shoM-ed  that  the 
jury  had  made  a  compromise,  instead  of  deciding  the  issues  submitted  to 
them.®  See,  however,  Forsdike  and  wife  v.  Stone,''  and  Eendall  v.  Hay- 
ward,*  which  lay  down  the  rule  that  where  there  has  been  no  misconduct 
on  the  part  of  the  jury,  no  error  in  the  calculation  of  figures,  no  mistake  in 
law  on  the  part  of  the  judge,  a  new  trial  will  not  be  granted.  That  the 
jury  intended  their  verdict  to  carry  costs,  but  have  returned  an  amount  in- 
sufficient in  law  to  do  so,  never  Avas  a  gi-ouud  for  granting  a  new  trial.® 

1  Hearne  v.  Stowell,  12  A.  &  E.  719  ;  11  L.  J.  Q.  B.  25  ;  4  P.  &  D.  696. 

2  Napier  v.  Daniel  and  another,  3  Bing.  N.  C.  77  ;  3  Scott,  417. 

3  2  Mod.  150.  *  3  C.  B.  (N.  S.)  142. 

5  L.  R.  1  Q.  B.  686,  697  ;  35  L.  J.  Q.  B.  209  ;  12  Jur.  N.  S.  937. 

6  Falvpy  V.  Stanford,  L.  R.  10  Q.  B.  54  ;  44  L.  J.   Q.   B.  7  ;  23  W.  R.  162  ;  31 
L.  T.  677. 

<  L.  R.  3  C  P.  607  ;  37  L.  J.  C.  P.  301  ;  16  W.  R.  976  ;  18  L.  T.  722. 

8  5  Bing.  N.  C.  424. 

9  Mears  v.  Griffin,  1  M.  &  Gr.  796  ;  2  Scott  N.  R.  15  ;  Kilmore  v.  Abdoolah,  27 
L.  J.  Ex.  307  ;  Forsdike  and  wife  v.  Stone,  supra. 

31  481 


*  559  PKACTICE   AND   EYIDEXCE. 

The  whole  law  on  this  subject  has  recently  been  discussed  in  Phillips  v. 
London  and  S.  W.  Ey.  Co.^ 

That  either  judge  or  jury  prematurely  expressed  a  strong  opinion  as  to 
the  case  is  no  ground  for  a  new  trial.^  It  would  be  otherwise  if  a  juror 
before  being  sworn  had  expressed  a  determination  to  give  a  verdict  in  favor 
of  the  plaintifl'. ^ 

If  a  new  trial  be  moved  for  on  the  ground  of  surprise,  the  absence  of  a 

material  witness  at  the  trial,  &c.,  there  must  be  an  affidavit  setting  out  the 

facts.     "  Surprise  is  a  matter  extrinsic  to  the  record  and  the  judge's  notes, 

and  consequently  can  only  be  made  to  appear  by  affidavit ;  and  here 

*  560    we  have  *  no  affidavit  of  surprise,  in  the  sense  required  by  the 

practice  of  the  Court."  * 

The  question  whether  an  apology  was  or  was  not  sufficient  is  peculiarly 
a  question  for  the  jury,  and  their  decision  cannot  be  reviewed  or  set  aside 
by  the  Court.^  So,  too,  a  verdict  cures  a  misjoinder  of  parties,  e.g.,  where 
husband  and  wife  are  jointly  sued  in  a  case  where  the  husband  should  be 
sued  alone.® 

If  a  new  trial  be  ordered,  the  costs  of  the  first  trial  are  in  the  discretion 
of  the  judge  who  tries  the  case  the  second  time ;  if  he  makes  no  order,  they 
follow  the  event.'' 

If  an  order  nisi  be  refused,  the  applicant  must  apply  Avithin  four  days,  if 
at  all,  to  the  Court  of  Appeal.^  An  order  nisi  granted  in  the  Court  of 
Appeal  on  such  an  application  will  in  itself  be  no  stay  of  proceedings.^ 
If  the  Divisional  Court  makes  absolute  an  order  for  a  new  trial,  an  appeal 
from  this  decision  must  be  brought,  if  at  all,  within  twenty-one  days  from 
the  time  when  the  order  absolute  is  entered  and  recorded. ■^° 

Where  the  trial  has  been  before  a  judge  without  a  jury,  an  application 
for  a  new  trial,  if  made  at  all,  must  in  all  cases  be  made  direct  to  the  Court 
of  Appeal.-^^     As  a  rule,  however,  the  application  should  be  by  way  of  ap- 

1  4  Q.  B.  D.  406  ;  48  L.  J.  Q.  B.  693  ;  27  W.  R.  797  ;  40  L.  T.  813  ;  (C.  A.)  5  Q. 
B.  D.  78  ;  49  L.  J.  Q.  B.  223 ;  28  W.  E.  10  ;  41  L.  T.  121. 

2  Lloyd  V.  Jones,  7  B.  &  S.  475. 

3  Ramadge  v.  Ryan,  9  Bing.  333  ;  2  IMoo.  &  Sc.  421. 

;     4  Per  Maule,  J.,  in  Hoare  v.  Silverlock  (No.  2)  (1850),  9  C.  B.  22. 

5  Risk  Allah  Bey  v.  Johnstone,  18  L.  T.  620. 

6  Burcher  v.  Orchard  (1652),  Sty.  349  ;  1  Roll.  Abr.  781. 

T  Creen  v.  Wright,  2  C.  P.  D.  354  ;  46  L.  J.  C.  P.  427  ;  25  W,  R.  502;  36  L.  T. 
355  ;  Field  v.  G.  N.  Ry.  Co.,  3  Ex.  D.  261  ;  26  W.  R.  817;  39  L.  T.  80  ;  Harris  v. 
Petherick  (C.  A.),  4  Q.  B.  D.  611  ;  48  L.  J.  Q.  B.  521  ;  28  W.  R.  11  ;  41  L.  T.  146. 

8  Order  LVIII.  r.  10. 

9  Goddard  v.  Thomp.son  (C.  A.),  47  L.  J.  Q.  B.  382  ;  26  W.  R.  362  ;  38  L.  T.  166. 
w  lb.,  r.  15.  Highton  v.  Treherne,  48  L.  J.  Ex.  167  ;  27  W.  R.  245  ;  39  L.  T.  411. 
u  Order  XXXIX.  r.  la,  R.  S.  C,  Dec.  1876,  r.  5  ;  Oastler  v.  Henderson  (C.  A.), 

2  Q.  B.  D.  575  ;  46  L.  J.  Q.  B.  607  ;  37  L.  T.  22. 

482 


PEOCEEDINGS  IN  THE  COURT  OF  APPEAL.      *  560 

peal,  and  not  by  motion  for  a  new  trial,^  for  the  Court  of  Appeal  has  power 
upon  an  appeal  to  review  the  judge's  findings  as  to  tlie  facts,  without 
a  rule  for  a  new  trial  having  been  expressly  asked  for  *  or  obtained.  *  561 
The  only  exception  to  this  rule  is  in  the  case  of  surprise :  then  a 
new  trial  should  be  asked  for.^  If,  however,  the  issues  were  settled  before 
the  case  was  heard  by  the  judge,  or  if  the  judge  first  tried  the  issues  of  fact, 
and  subsequently  there  was  a  separate  determination  of  the  law  applied  to 
those  facts,  then  perhaps  there  should  be  a  motion  for  a  new  trial.^ 

If  an  action  commenced  in  the  Chancery  Division  be  tried  by  a  judge 
and  jury  in  one  of  the  Common  Law  Divisions,  it  is  ipso  facto  transferred 
to  the  Division  to  which  that  judge  belongs,  and  the  application  for  a  new 
trial  must  be  made  to  a  Divisional  Court  of  that  Division ;  for  such  a  case 
is  within  Order  XXX IX,*  though  not  within  the  words  of  Order  V.* 
But  this  does  not  apply  to  an  action  in  which  an  issue  has  been  directed 
by  a  judge  of  the  Chancery  Division.  The  action  in  that  case  still  remains 
attached  to  the  Chancery  Division.® 

Proceedings  in  the  Court  of  Appeal. 

If  no  exception  be  taken  at  the  trial,  and  annexed  to  the  record,''  the 
only  rule  which  authorizes  a  party  to  come  direct  from  Nisi  Prius  to  the 
Court  of  Appeal  appears  to  be  the  following  :  — 

Where,  at  or  after  the  trial  of  an  action  by  a  jury,  the  judge  lias  directed 
that  any  judgment  be  entered,  any  party  may,  without  any  leave  reserved, 
apply  to  set  aside  such  judgment  and  enter  any  other  judgment,  on  the 
ground  that  the  judgment  directed  to  be  entered  is  wrong,  by  reason  of  the 
judge  having  caused  the  finding  to  be  wrongly  entered  with 
*  reference  to  the  finding  of  the  jury  upon  the  question  or  questions  *  562 
submitted  to  them. 

Where,  at  or  after  the  trial  of  an  action  before  a  judge,  the  judge  has 
directed  that  any  judgment  be  entered,  any  party  may,  without  any  leave 
reserved,  apply  to  set  aside  such  judgment  and  to  enter  any  other  judg- 
ment, upon  the  ground  that,  upon  the  finding  as  entered,  the  judgment  so 
directed  is  wrong. 

1  Pannell  v.  Nunn  (C.  A.),  28  W.  R.  940  ;  Potter  v.  Cotton  (C.  A.),  5  Ex.  D.  137  ; 
49  L.  J.  Ex.  158;  28  W.  R.  160;  41  L.  T.  460. 

2  .Tones  v.  Hough  (C.  A.).  5  Ex.  D.  115  ;  42  L.  T.  108. 

8  Krehl  v.  Bunell  (C.  A.),  10  Ch.  D.  420  ;  48  L.  J.  Ch.  252  ;  27  W.  R.  234  ;  39 
L.  T.  461  ;  as  explained  by  Lowe  v.  Lowe  (C.  A.),  10  Ch.  D.  432  ;  48  L.  J.  Ch.  383  ; 
27  W.  R.  309  ;  40  L.  T.  236  ;  and  Dollman  v.  Jones,  12  Ch.  D.  553  ;  27  W.  R.  877  ; 
41  L.  T.  258.  *  R.  1«,  R.  S.  C,  Dec.  1876,  r.  5. 

5  R.  4«,  R.  S.  C,  March,  1879.  Hunt  v.  City  of  London  Real  Property  Co.,  3 
Q.  B.  D.  19  ;  47  L.  J.  Q.  B.  42,  51  ;  26  W.  R.  37  ;  37  L.  T.  344  ;  Jones  v.  Baxter  (C.A.), 
5  Ex.  D.  275  ;  28  W.  R.  817. 

6  Jenkins  v.  Morris  (C.  A.),  14  Ch.  D.  674  ;  49  L.  J.  Ch.  392.  1  Ante,  p.  551. 

483 


*  562  PRACTICE  AXD   EVIDENCE. 

An  application  under  this  rule  shall  be  to  the  Court  of  Appeal.^ 
An  application  under  this  rule  must  be  made  by  motion  upon  notice,  not 
as  in  the  case  of  a  motion  for  a  new  trial  by  an  ex  parte  application  for  an 
order  nisi.^  It  may  be  made  at  any  time  within  a  year  after  the  party 
seeking  to  make  the  motion  first  became  entitled  so  to  do.^  He  apparently 
becomes  so  entitled  the  moment  the  jury  are  discharged.*  Fourteen  days' 
notice  of  motion  must  be  given  under  Order  LVIII.  r.  4.® 

Either  party  may  also,  of  course,  appeal  from  any  decision  of  the 
Divisional  Court,  not  being  an  order  made  by  consent  or  as  to  costs 
merely.®  Such  appeal  shall  be  by  way  of  rehearing,  and  shall  be  brought, 
by  notice  of  motion,  within  twenty-one  days  from  the  date  of  an  interlo- 
cutory order,  or  within  a  year  from  a  final  judgment.''  An  order  overruling 
or  allowing  a  demurrer,  is  a  final  judgment,  as  it  is  a  conclusive  determina- 
tion of  one  part  of  the  case,  if  not  the  whole.®  An  order  making  absolute 
an  order  nisi  for  a  new  trial  is  an  interlocutory  order,  the  rights  of  the 
parties  not  being  finally  determined  thereby.®  It  might  be  contended  that 
an  order  discharging  such  an  order  nisi  was  a  final  judgment,  so  as  to 
enable  the  party  desiring  a  new  trial  to  appeal  at  any  time  within  a  year. 
But  in  Standard  Discount  Co.  v.  La  Grange,^''  Brett,  L.J.,  lays  down  a  rule 
that  no  order  can  be  final,  unless  the  application  on  which  it  was  granted, 
would  have  determined  the  action,  whichever  way  it  was  decided. 

*  563    *  If  this  be  so,  then  an  order  discharging  an  order  7iisi  for  a  new 

trial  will  be  interlocutory,  because  an  order  making  it  absolute 
would  have  been  interlocutory.  But  the  point  has  not  yet  been  decided, 
and  it  would  be  safer  not  to  raise  it,  if  it  can  be  avoided.  Sundays  are 
included  within  the  twenty-one  days."  An  extension  of  the  time  will  only 
be  granted  under  very  special  circumstances.-^^    That  the  appellant's  legal 

1  Order  XL.  r.  4a;  R.  S.  C,  Dec.  1876,  r.  7. 

2  Order  LIII.  rr.  2,  3  ;  Order  LVIII.  r.  2  ;  Jones  v.  Davis  (C.  A.),  36  L.  T.  415  ; 
W.  N.  1877,  p.  86.  ^  Order  XL.  r.  9. 

4  Shaw  V.  Hope,  25  W.  R.  729. 

5  R.  4  ;  Foster  v.  Roberts,  W,  N.  1877,  p.  11. 

6  Jud.  Act,  1873,  s.  49.  ^  Order  LVIII.  rr.  2,  15. 

8  Trowell  v.  Shenton  (C.  A.),  8  Ch.  D.  318,  321  ;  47  L.  J.  Ch.  738  ;  26  W.  R.  837  ; 
38  L.  T.  369. 

9  Highton  V.  Treheme,  48  L.  J.  Ex.  167  ;  27  W.  R.  245  ;  39  L.  T.  411. 
"»  C.  A.,  3  C.  P.  D.  71  ;  47  L.  J.  C.  P.  3  ;  26  W.  R.  25  ;  37  L.  T.  372. 

11  Ex  parte  Viney  (C.  A.),  4  Ch.  D.  794  ;  46  L.  J.  Bank.  80  ;  25  W.  R.  364  ;  36 
L.  T.  43. 

12  Craig  V.  Phillips  (C.  A),  3  Ch.  D,  249  ;  47  L.  J.  Ch.  239  ;  26  W.  R.  293  ;  37 
L.  T.  772°;  McAndrew  v.  Barker  (C.  A.),  7  Ch.  D.  701  ;  47  L.  J.  Ch.  340  ;  26  W.  R. 
317  ;  37  L.  T.  810  ;  In  re  Mansel,  Rhodes  v.  Jenkins  (C.  A.),  7  Ch.  D.  711  ;  47  L.  J. 
Ch.  870;  26  W.  R.  361  ;  38  L.  T.  403  ;  Taylor's  case  (C.A.),'  8  Ch.  D.  643  ;  47  L.  J, 
Ch.  701  ;  26  W.  R.  601  ;  38  L.  T.  587  ;  Collins  v.  Vestry  of  Paddington  (C.  A.),  5 
Q.  D.  D.  368  ;  49  L.  J.  Q.  B.  264  ;  28  W.  R.  588  ;  42  L.  T.  573. 

484 


PROCEEDINGS   IN   THE   COURT   OF   ArPEAL.  *  563 

adviser  misconstrued  the  rules  of  the  Supreme  Court,  is  no  ground  for  an 
extension  of  the  time  for  appealing.^ 

If  the  appellant  be  a  foreigner  residing  abroad,  or  if  the  appeal  be  un- 
reasonable or  vexatious,  the  appellant  may  be  ordered  to  give  security  for 
costs  on  an  application  made  by  the  respondent  within  a  reasonable  time 
on  notice  of  motion.^  But  such  an  application  must  always  be  made 
])r()mptly.^  The  insolvency  of  the  appellant  is  not  alone  a  sufficient 
ground,  if  the  question  *  raised  by  the  appeal  be  a  doubtful  one,  *  564 
well  worthy  argument  in  the  Court  of  Appeal.* 

An  appeal  is  no  stay  of  execution  or  of  proceedings,  unless  the  Court 
below,  or  failing  that,  the  Court  of  Appeal,  otherwise  orders.^ 

The  respondent  may  give  notice  that  he  intends  to  apply  upon  the 
hearing  of  the  appeal  that  the  order  appealed  against  be  varied.  He  need 
not  give  any  notice  of  motion  by  way  of  cross-appeal.^ 

If  the  appellant  does  not  appear  at  the  hearing,  the  respondent  is 
entitled  to  have  the  appeal  dismissed  with  costs,  without  giving  any  proof 
of  the  service  of  notice  of  appeal' 

At  the  hearing,  the  Court  of  Appeal  has  all  the  powers  of  a  Court  of 
first  instance  as  to  amendment  or  otherwise.  The  Court  may,  in  its  dis- 
cretion, receive  further  evidence  as  to  any  matter  of  fact;  but  special 
grounds  must  be  shown  and  special  leave  obtainetl  for  the  production  of 
such  further  evidence  after  there  has  been  a  full  hearing  on  the  merits  at 
Nisi  Prius}  Due  notice  must  be  given  to  the  respondent  that  appellant 
intends  to  apply  at  the  hearing  to  adduce  fresh  evidence.  ^ 

1  International  Financial  Soc.  v.  City  of  Moscow  Gas  Co.  (C.  A. ),  7  Ch.  D.  241  ; 
47  L.  J.  Cli.  258  ;  26  W.  R.  272  ;  37  L.  T.  736  ;  Highton  v.  Treherne,  supra.  As  to 
the  notice  of  motion  and  the  amendment  thereof,  see  Order  LVIII.  n-.  3,  4  ;  and  In 
re  Stockton  Iron  Furnace  Co.  (C.  A.),  10  Ch.  D.  335,  348  ;  48  L.  J,  Ch.  417  ;  27 
W.  R.  433  ;  40  L.  T.  19.  As  to  setting  down  the  appeal  for  hearing,  see  Order  LVIII. 
r.  8  ;  /n.  re  National  Funds  Insurance  Co.  (C.  A.),  4  Ch.  D.  305  ;  46  L.  J.  Ch.  183  ; 

25  W.  R.  151  ;  35  L.  T.  689  ;  Webb  v.  Mansel  (C.  A.),  2  Q.  B.  D.  117  ;  25  W.  R. 
389 ;  In  re  Harker,  Goodbarne  v.  FothergUl  (C.  A.),  10  Ch.  D.  613  ;  27  W.  R,  587  ; 
40  L.  T.  408. 

2  Grant  v.  Banque  Franco-Egyptienne  (C.  A.),  2  C.  P.  D.  430  ;  47  L.  J.  C.  P.  41  ; 

26  W.  R.  68. 

3  Corporation  of  Saltash  v.  Goodman  and  another,  43  L.  T.  464  ;  AV.  N.  1880,  p.  167. 

4  Rourke  v.  White  Moss  Colliery  Co.  (C.  A.),  1  C.  P.  D.  556,  562. 

6  Order  LVIII.  rr.  16,  17  ;  Goddard  v.  Thompson  (C.  A.),  47  L.  .1.  Q.  B.  382  ;  26 
W.  R.  362  ;  33  L.  T.  166  ;  Wilson  v.  Church  (C.A.),  11  Ch.  D.  576  ;  48  L.  J.  Ch.  690  ; 

27  W.  R.  843  ;  12  Ch.  D.  454  ;  28  W.  R.  284  ;  41  L.  T.  50  ;  Grant  v.  Banque  Fmnco- 
Egyptienne  (C.  A.),  3  C.  P.  D.  202  ;  47  L.  J.  C.  P.  455  ;  26  W.  R.  669  ;  38  L.  T.  622. 

6  Order  LVIII.  rr.  6,  7  ;  Ex  parte  Payne,  inre  Cross,  11  Ch.  D.  539,  550  ;  27  W.  R. 
808  ;  40  L.  T.  563  ;  Ralph  v.  Carrick,  11  Ch.  D.  873  ;  28  W.  R.  67  ;  40  L.  T.  505. 

7  Ex  parte  Lows,  in  re  Lows  (C.  A.),  7  Ch.  D.  160  ;  47  L.  J.  Bank.  24  ;  26  W.  R. 
229  ;  37  L.  T.  583.  8  Order  LVIII.  r.  5. 

9  Hastie  v.  Hastie  (C.A.),  1  Ch.  D.  562  ;  45  L.   J.    Ch.    288  ;  24   W.  R.  564  ;  34 

485 


*  564  PEACTICE  AND  EVIDENCE. 

The  judge's  note  is  decisive  as  to  the  evidence  taken  in  the  Court  below  ; 
but  either  party  may  read  a  shorthand-writer's  note,  to  supplement, 

*  565    though  not  to  overrule,  the  judge's  note.^     *  The  cost  of  print- 

ing the  evidence  below  will  be  allowed  if  it  is  very  voluminous. "•^ 
If,  upon  the  hearing  of  an  appeal  from  a  judgment  pronounced  by  a  judge 
or  Court  on  the  verdict  or  finding  of  a  jury,  or  of  a  judge  without  a  jury, 
it  shall  appear  to  the  Court  of  Appeal  that  a  new  trial  ought  to  be  had,  it 
shall  be  lawful  for  the  said  Court  of  Appeal,  if  it  shall  think  fit,  to  order 
that  the  verdict  and  judgment  shall  be  set  aside,  and  that  a  new  trial 
shall  be  had.^ 

The  successful  party  will,  as  a  rule,  obtain  costs.*  When  the  respondent 
gives  notice  of  his  intention  to  contend  that  the  order  appealed  from  be 
varied,  and  the  appeal  is  dismissed,  the  appellant  will  have  to  pay  all  costs 
which  he  cannot  show  to  have  been  occasioned  solely  by  the  respondent's 
notice.^  A  special  order  must  be  obtained  before  the  judgment  of  the 
Court  of  Appeal  is  entered,  allowing  the  costs  of  shorthand-writers'  notes 
or  of  printing  the  evidence.® 

County  Court  Proceedings. 

No  action  of  libel  or  slander  can  be  commenced  in  the  County  Court,' 
•     except  by  consent.^     I  presume  that  the  word  "slander"  includes 

*  566    "  slander  of  title."     In  cases  of  a  trifling  nature,  it  may  be  *  de- 

sirable that  both  parties  should  consent  to  such  a  course,  especially 
if  all  the  witnesses  reside  in  a  town  where  a  County  Court  is  held.  The 
parties  or  their  respective  solicitors  must  in  that  case  sign  a  memorandum 
of  consent  (in  the  form  given  as  No.  45),  which  must  be  tiled  ;  and  there- 
upon a  plaint  will  be  entered  and  a  summons  issued,  and  all  further  pro- 
ceedings will  be  taken  as  in  an  ordinary  County  Court  case.^ 
L.  T.  13  ;  Dicks  v.  Brooks,  13  Ch.  D.  652  ;  28  W.  K  525  ;  43  L.  T.  71.  As  to  what  are 
sufficient  special  grounds,  see  In  re  Chennell  (C.  A.),  8  Ch.  D.  504-507  ;  47  L.  J.  th. 
583  ;  26  W.  R.  595  ;  38  L.  T.  494  ;  Bigsby  v.  Dickinson  (C.  A.),  4  Ch.  D.  24  ;  46 
L.  J.  Ch.  280 ;  25  W.  R.  89  ;  35  L.  T.  679. 

1  Order  LVIII.  r.  13  ;  Laming  v.  Gee  (C.  A.),  28  W.  R.  217. 

2  Order  LVIII.  r.  12  ;  Bigsby  v.  Dickinson,  infra. 
8  Order  LVIII.  r.  5«,  R.  S.  C.,  March,  1879. 

*  Per  James,  L.J.,  1  Ch.  D.  41,  113  ;  45  L.  J.  Ch.  1. 

6  The  Lauretta,  4  P.  D.  25  ;  48  L.  J.  Prob.  55  ;  27  W.  R.  902  ;  40  L.  T.  444. 

6  Ashworth  v.  Outram,  9  Ch.  D.  483  ;  27  W.  R.  98  ;  39  L.  T.  441  ;  In  re  Silver 
Lead  Ore  Co.,  10  Ch.  D.  307,  312  ;  Executors  of  Sir  Rowland  Hill  v.  Metropolitan  Dis- 
trict Asylum,  49  L.  J.  Q.  B.  668  ;  43  L.  T.  462  ;  Weekly  Notes,  1880,  p.  98  ;  Bigsby 
V.  Dickinson  (C.  A.),  4  Ch.  D.  24  ;  46  L.  J.  Ch.  280  ;  25  W.  R.  89,  122  ;  35  L.  T.  679. 
As  to  a  further  appeal  to  the  House  of  Lords,  see  the  Appellate  Jurisdiction  Act, 
1876  (39  &  40  Vict.  c.  59),  and  the  Stan.Iing  Orders  of  August,  1876,  Weekly  Notes, 
1876,  Part  II.,  p.  475-7  ;  as  amended,  Weekly  Notes,  1877,  Part  IL,  p.  57. 

1  9  &  10  Vict.  c.  95,  s.  58.  »  19  &  20  Vict.  c.  108,  s.  23. 

»  County  Court  Order  XXXVII.  r.  46. 

486 


COUNTY  COURT  PROCEEDINGS.  *  566 

But  an  action  of  libel  or  slander,  whatever  the  amount  of  damages 
claimed,  may  be  transferred  to  the  County  Court,  under  s.  10  of  the  30  & 
31  Vict.  c.  142,  ante,  p.  468.  The  defendant  may  apply  to  a  master  at 
chambers  under  this  section,  at  any  stage  of  the  proceedings,  on  an  affi- 
davit, showing  a  good  defence  on  the  merits,  that  the  plaintiff  has  no 
visible  means,  and  that  there  will  be  a  saving  of  costs,  and  greater  con- 
venience in  trying  in  the  County  Court.  But  no  order  will  be  made  (1)  if 
the  action  is  one  tit  to  be  prosecuted  in  the  Superior  Court,  because  involv- 
ing important  points  of  law,  or  because  it  is  a  test  action,  &c.;  or  (2)  if  the 
plaintiff  can  prove  that  he  has  visible  means  of  paying  costs.  "  Visible  " 
means  tangible,  such  property  as  the  defendant  could  reach  in  the  event  of 
his  obtaining  judgment  for  his  costs.^  The  plaintiff  also  generally  denies 
that  there  will  be  any  saving  of  costs  or  convenience  in  trying  in  the 
County  Court.  It  is  practically  useless  for  a  defendant  to  appeal  from  the 
master's  order.^     The  plaintiff  may  appeal,  if  the  order  is  obviously  wrong.^ 

The  plaintiff  must  now  lodge  the  writ  and  other  proceedings  and  the 
order  remitting  the  action,  with  the  registrar  of  the  County  Court.  Until 
this  is  done,  the  action  remains  in  the  Superior  Court,  which,  con- 
sequently, has  jurisdiction  to  vary  the  order.*  As  soon  as  the  *  nee-  *  567 
essary  documents  are  filed,  the  action  becomes  a  County  Court 
cause,  as  completely  as  if  it  were  one  duly  commenced  therein.^  The 
County  Court  judge  is  bound  to  assume  jurisdiction ;  he  cannot  inquire 
into  the  circumstances  under  which  the  order  was  made.^  If  the  plaintiff 
omit  to  lodge  the  order  of  transfer  within  a  reasonable  time  after  it  is  made, 
the  defendant  can  apply  at  chambers  for  an  order  dismissing  the  action  for 
want  of  prosecution. 

The  plaintiff  is  required  by  County  Court,^  to  lodge  not  only  the  writ 
and  the  order  remitting  the  action,  but  also  a  statement  of  the  names  and 
addresses  of  the  several  parties  to  the  action,  and  their  solicitors,  if  any, 
and  a  concise  statement  of  the  particulars,  such  as  would  be  required  upon 
entering  a  plaint,  signed  by  the  plaintiff  or  his  solicitor,  and  the  registrar 
shall  thereupon  enter  the  action  for  trial,  and  give  notice  to  the  parties  of 

1  Counsel  v.  Garvie,  Ir.  R.  5  C.  L.  74  ;  Watson  v.  McCann,  6  L.  E.  Ir.  21  ;  and  see 
Sykes  v.  Sykes,  L.  R.  4  C.  P.  645  ;  38  L.  J.  C.  P.  281  ;  17  W.  R.  799 ;  20  L.  T.  663. 

2  Palmer  v.  Roberts,  22  W.  R.  577,  n. ;  29  L.  T.  403. 

3  Jennings  and  wife  v.  London  General  Omnibus  Co.,  30  L.  T.  266  ;  Owens  v.  Woos- 
man,  L.  R.  3  Q.  B.  469  ;  9  B.  &  S.  243  ;  37  L.  J.  Q.  B.  159  ;  16  W.  R.  932  ;  18  L.  T. 
357  ;  Holmes  v.  Mountstephen,  L.  R.  10  C.  P.  474  ;  33  L.  T.  351. 

4  Welply  V.  Buhl  (0.  A.),  3  Q.  B.  D.  80,  253  ;  47  L.  J.  Q.  B.  151  ;  26  W.  R.  300  ; 
38  L.  T.  115. 

5  Moody  V.  Steward,  L.  R.  6  Ex.  35  ;  40  L.  J.  Ex.  25 ;  19  W.  R.  161  ;  23  L.  T. 
465. 

6  Blades  V.  Lawrence,  L.  R.  9  Q.  B.  374 ;  43  L.  J.  Q.  B.  133  ;  22  W.  R.  643  ;  30 
L.  T.  378.  ''  Order  XX.  r.  2. 

487 


*  567  PRACTICE   AND  EVIDENCE. 

the  day  appointed  for  such  trial,  by  post  or  otherwise,  ten  clear  daj'^s  before 
such  day,  and  shall  annex  to  the  notice  to  the  defendant  a  copy  of  the 
plaintiff's  particulars.^  The  registrar  shall  forthwith  indorse  on  the  order 
the  date  on  which  the  same  was  lodged  and  hie  the  same,  and  the  action 
shall  proceed  in  all  things  as  if  it  were  an  ordinary  action  in  the  County 
Court.  ^ 

The  defendant  upon  being  served  with  such  a  notice  of  trial  may  pro- 
ceed in  all  things  in  the  same  way  as  if  the  action  had  been  brought  in 
the  County  Court,  and  the  notice  so  served  upon  him  was  an  ordinary 
summons.* 

Thus  he  may,  five  clear  days  at  least  before  the  day  named  in  such  notice 

of  trial,  pay  money  into  Court,  either  generally  or  under  Lord  Campbell's 

Act,  paying  a  Court  fee  of  Is.  in  the  £  on  the  amount  paid  in.*     Or  he 

may  set  up  a  counterclaim,^  or  plead  Not  Guilty  by  statute,®  or  a 

*  568    justification,''  or  any  other  special  defence,  by  sending  in  to  *  the 

registrar  a  concise  statement  of  the  grounds  of  such  sjiecial  defence 
five  clear  days  at  least  before  the  day  named  for  trial.*  If  the  defendant 
omit  to  send  such  statement,  he  will  not  be  allowed  to  avail  himself  of  the 
defence,  unless  the  plaintiff  consents  thereto ;  but  the  judge  will  in  a  proper 
case  adjourn  the  trial  of  the  action  to  enable  the  defendant  to  give  such 
notice.^  So,  too,  if  the  defendant  intends  to  avail  himself  of  the  provisions 
of  sects.  1  and  2  of  6  &  7  Yict.  c.  96,  he  must  give  notice  in  writing  of 
such  intention,  signed  by  himself  or  his  solicitor,  to  the  registrar  five  clear 
days  before  the  day  appointed  for  the  trial  of  the  action.^"  Such  notice 
should  be  in  form  No.  55,"  if  \inder  s.  1  of  Lord  Campbell's  Act,  in  form 
No.  56,^^  if  under  s.  2. 

Where  in  any  action  for  libel  or  slander  the  defendant  relies  as  a  de- 
fence upon  the  fact  that  the  libel  or  slander  is  true,  he  shall  in  his  state- 
ment set  forth  that  the  libel  or  slander  complained  of  is  true  in  substance." 
Such  statement  should  be  in  form  No.  54." 

Interrogatories  may  be  administered  in  the  County  Court  by  leave  of  the 
registrar.'^    An  affidavit  is  necessary  which  may  be  in  form  No.  52}^    Any 

1  For  a  form  of  such  statement  of  the  plaintiff's  particular,  see  Precedent  No.  50, 
post,  p.  644.  For  a  fomi  of  the  Notice  of  Trial  sent  to  the  defeudant  by  the  registrar, 
see  Precedent  No.  51,  post,  645. 

2  County  Court  Order  XX.  r.  3. 
8  County  Court  Order  XX.  r.  2. 

*  County  Court  Order  XII.  rr.  4,  5,  6a,  and  7.     ^  Count}'  Court  Order  IX.  r.  la. 

6  lb.  r.  14.  "^  lb.  T.  13. 

8  See  Precedents,  Nos.  53,  54,  post,  p.  646.  ^  County  Court  Order  IX.  r.  7. 

^0  County  Court  Order  XX.  r.  4.  "  Post,  p.  647. 

"  Post,  p.  648.  "  County  Court  Order  IX.  r.  13. 

1*  Post,  p.  647.  ^5  County  Court  Order  XIII.  r.  6. 

16  Fost,  p.  646. 

488 


COUNTY  COURT  PROCEEDINGS.  *  568 

objection  to  answer  must  be  taken  in  the  affidavit  in  answer.     Discovery 
and  inspection  of  documents  may  also  be  obtained  as  in  the  Superior  Court. 

The  action  may  at  the  instance  of  either  party  be  tried  by  a  jury  ^  of  five,^ 
upon  a  demand  for  one  being  made  in  writing  to  the  registrar  three  clear 
days  before  trial. ^  In  cases  where  no  demand  for  a  jury  has  been  so  made, 
but  at  the  trial  both  parties  desire  one,  the  judge  may  adjourn  the  trial 
upon  terms  in  order  that  the  necessary  steps  may  be  taken  for  such  trial  to 
take  place.*  It  is  always  desirable  to  have  a  jury  in  an  action  of  libel  or 
slander. 

The  trial  takes  place  in  all  respects  as  in  an  ordinary  County  Court 
cause ;  save  that  if  any  pleadings  were  delivered  in  the  action  before  the 
order  was  made  remitting  it  to  the  County  Court,  the  judge  must  not  dis- 
regard them.  Thus  if  a  plaintiff  has  shaped  his  action  differently 
on  his  statement  of  claim  and  *  on  his  writ,  the  judge  must  look  *  569 
rather  to  the  statement  of  claim  than  to  the  writ ;  ®  for  the  indorse- 
ment on  a  writ  is  superseded  by  a  statement  of  claim  except  as  to  the 
amount  claimed  in  the  action.^  Great  care  must  be  taken  to  ask  the  judge 
before  delivering  judgment  to  make  a  note  of  any  point  of  law  on  which 
either  party  relies.'^ 

Judgment  is  entered  and  all  subsequent  proceedings  taken  as  in  an  or- 
dinary County  Court  action.  Any  motion  for  a  new  trial  must  be  made  to 
the  judge  in  the  County  Court ;  ^  any  appeal,  to  the  Divisional  Court  for 
hearing  appeals  from  Inferior  Courts,  or  if  that  be  not  sitting,  to  a  judge  at 
chambers,  who  must  hear  the  case  himself,  and  not  adjourn  it  to  the  full 
C'uirt.^ 

The  costs  will  follow  the  event,  unless  the  judge  at  the  trial  make  any 
order  to  the  contrary.^"  In  taxing  the  costs  incurred  in  the  High  Court  of 
Justice  previous  to  the  transmission  of  the  action  to  the  County  Court  un- 
der sects.  7  or  10  of  the  County  Courts  Act,  1867,  the  registrar  shall  tax 
the  same  according  to  the  scale  of  costs  and  fees  in  use  in  such  High  Court  of 
Justice. ■"•     The  costs  subsequent  to  the  order  remitting  the  action  will  be 

1  County  Court  Order  XVI.  r.  3. 

2  9  &  10  Vict.  c.  95,  s.  73.  3  County  Court  Order  XVI,  r.  1. 
4  County  Court  Order  XVI.  r.  2. 

6  Johnson  v.  Palmer,  4  C.  P.  D.  258  ;  27  W.  R.  941. 
^  Large  v.  Large,  Weekly  Notes,  1877,  p.  198. 

7  Rhodes  v.  Liverpool  Investment  Co.,  4  C.  P.  D.  425  ;  Pierpoint  v.  Cartwright,  5 
r.  P.  D.  139  ;  28  W.  R.  583  ;  42  L.  T.  295  ;  Seymour  v.  Coulson  (C.  A.),  28  W.  R. 
(:■  1. 

^  <  ouiity  Court  Order  XXVIII. 

s  Button  V.  Woolwich  Mutual  Building  Society,  5  Q.  B.  D.  83  ;  49  L.  J.  Q.  B. 
249  ;  28  W.  R.  136  ;  42  L.  T.  54. 

1"  County  Courts  Act,  1846,  9  &  10  Vict.  c.  95,  s.  88. 
U  County  Court  Order  XXXVI.  r.  2. 

489 


*  569  PRACTICE   AND  EVIDENCE. 

taxed  according  to  the  scale  in  use  in  the  County  Courts,  by  the  express 
words  of  s.  10  of  30  &  31  Vict.  c.  142.  The  Superior  Court  has  no  juris- 
diction to  make  any  order  as  to  costs.^ 

Other  Inferior  Courts. 

The  Salford  Hundred  Court  has  power  to  hear  all  cases  of  libel  or  slan- 
der arising  within  the  jurisdiction  of  the  Court,   provided  the  damages 
claimed  do  not  exceed  <£50.     If  they  exceed  £50,  it  appears  that  the  Court 
has  no  jurisdiction  even  by  consent.^     The  costs  follow  the  event, 

*  570    both  in  *the  Salford  Hundred  Court  ^  and  in  the  Liverpool  Court 

of  Passage,*  and  indeed  wherever  the  case  is  tried  by  a  jury  ;  sub- 
ject however  to  the  power  reserved  to  a  judge  by  Order  LV.  r.  1,  to  deprive 
a  successful  plaintiff  of  his  costs,  on  good  cause  shown.  Section  29  of  the 
County  Courts  Act,  1867,  never  applied  to  actions  of  libel  or  slander,  for 
they  never  could  have  been  brought  in  a  County  Court ;  but  even  if  it  did 
apply,  it  is  a  question  whether  it  is  not  now  repealed,  as  it  is  not  expressly 
re-enacted  by  s.  67  of  the  Judicature  Act,  1873. 

1  Moody  V.  Steward,  L.  E.   6  Ex.  35  ;    40  L.   J.   Ex.  25  ;    19  W.   R.  161  ;    23 
L.  T.  4C5. 

2  9  &  10  Vict.  c.  cxxvi. ;  Farrow  v.  Hague,  3  H.  &  C.  101  ;  33  L.  J.  Ex.  258. 
8  Turner  v.  Heyland,  4  C.  P.  D.  432  ;  48  L.  J.  C.  P.  535  ;  41  L.  T.  556. 

*  King  and  another  v.  Hawkesworth,  4  Q.  B.  D.  371  ;  48  L.  J.  Q.  B.  484  ;  27 
W.  R.  660  ;  41  L.  T.  411. 

490 


*  CHAPTER  XVIII.  *571 

PRACTICE  AND  EVIDENCE  IN  CRIMINAL  CASES. 

This  chapter  naturally  divides  itself  into  two  heads  :  — 
I.  Proceedings  by  Avay  of  Indictment. 
II.  Proceeduigs  by  way  of  Criminal  Information. 


PART  I. 

PRACTICE  AND   EVIDENCE   IN   CRIMINAL   PROCEEDINGS   BY   WAY 

OF   INDICTMENT. 

Proceedings  before  Magistrates. 

Criminal  proceedings  for  libel  usually  commence  by  the  prosecutor  sum- 
moning the  accused  before  a  police  or  stipendiary  magistrate,  or  before  two 
justices  of  the  peace. 

The  offence  of  libel  is  not  included  in  the  Vexatious  Indictments  Act.^ 
It  is  not  essential,  therefore,  that  the  accused  should  be  so  summoned ;  it  is 
open  to  the  prosecutor  to  go  direct  to  the  grand  jury  and  prefer  a  bill.  But 
it  is  very  unusual  so  to  do ;  for,  should  the  defendant  in  such  a  case  be 
ultimately  found  Kot  Guilty,  the  prosecutor  may  be  ordered  to  pay  all  the 
costs  of  the  defence,  under  30  &  31  Vict.  c.  35,  s.  2. 

If  the  defendant  does  not  obey  the  summons  served  upon  him,  the  mag- 
istrate will  issue  a  warrant  for  his  arrest ;  or  he  may,  if  he  think  fit,  on 
good  cause  shown  and  information  sworn,  issue  a  warrant  for  his  apprehen- 
sion in  the  first  instance  without  any  previous  summons.^ 

*  When  the  accused  comes  before  the  magistrate  the  prosecutor  *  572 
has  merely  to  prove  publication,  unless  it  is  not  clear  that  the  libel 
refers  to  the  prosecutor,  in  which  case  it  may  be  necessary  to  call  some  one 
acquainted  with  the  circumstances  to  state  that  on  reading  the  libel  be 
understood  it  to  refer  to  the  prosecutor.  The  magistrate  must  decide  for 
himself  whether  the  written  matter  before  him  is  in  point  of  law  a  libel. 

1  22  &  23  Vict.  c.  17. 

2  Butt  V.  Conant,  1  Brod.  &  B.  548  ;  4  Moore,  195  ;  Gow,  84  ;  11  &  12  Vict.  c.  42, 
ss.  1,  8. 

491 


*  O  (  2  PEACTICE   AND   EVIDENCE. 

Unless  it  is  clearl3''no  libel  he  will,  after  proof  of  publication  by  the  de- 
fendant, or  some  agent  or  servant  on  his  behalf^  commit  the  defendant  for 
trial.  But,  before  doing  so,  he  must  ask  the  defendant  Avhether  he  desires 
to  call  any  witnesses.^  Tlie  defendant  may  then  call  "witnesses  to  prove 
that  he  did  not  publish  the  libel,  that  it  is  a  fair  and  bona  fide  comment  on 
a  matter  of  public  interest,  that  it  does  not  refer  to  prosecutor,  etc. 

But  he  may  not  (unless  the  information  charges  him  Avith  an  offence  lan- 
der s.  4  of  Lord  Campbell's  Act)  give  any  evidence  before  the  magistrate  of 
the  truth  of  the  matters  charged  in  the  libel.  "  The  duty  and  province  of 
the  magistrate  before  whom  a  person  is  brought,  with  a  view  to  his  being 
committed  for  trial  or  held  to  bail,  is  to  determine,  on  hearing  the  evidence 
for  the  prosecution  and  that  for  the  defence,  if  there  be  any,  whether  the 
case  is  one  in  which  the  accused  ought  to  be  put  upon  his  trial.  It  is  no 
part  of  his  province  to  try  the  case.  That  being  so,  in  my  opinion,  unless 
there  is  some  further  statutory  duty  imposed  on  the  magistrate,  the  evidence 
before  him  must  be  confined  to  the  question  whether  the  case  is  such  as 
ought  to  be  sent  for  trial,  and  if  he  exceeds  the  limits  of  that  inquiry,  he 
transcends  the  bounds  of  his  jurisdiction.  This  case  was  one  of  a  charge 
of  libel,  and  the  magistrate  had  to  inquire,  first,  whether  the  matter  com- 
plained of  was  libellous,  and,  secondly,  whether  the  publication  of  it  Avas 
brought  home  to  the  accused,  so  far  as  tliat  there  ought  to  be  a  committal. 
Independently  of  statute,  the  magistrate  could  not  receive  evidence  of  the 
truth  of  the  libel.  The  question  then  arises  whether  Lord  Campbell's  Act 
enables  him  to  do  so.  In  my  opinion  it  does  not,  because  by  the  provi- 
sions of  the  Act  the  defence  founded  upon  the  truth  of  the  libel  does  not 
arrive  at  that  stage,  and  cannot  be  put  forward  before  the  magistrate. 
*  573  *  Suppose  the  defendant  had  succeeded  fully  and  entirely  in  show- 
ing the  truth  of  the  libel.  What  then  would  have  been  the  duty 
of  the  magistrate?  He  would  nevertheless  have  been  bound  to  send  the 
case  for  trial,  because  by  the  statute  the  truth  of  the  libel  does  not  consti- 
tute a  defence  until  the  statutory  conditions  are  complied  with,  and  they 
cannot  be  complied  with  at  that  stage  of  the  inquiry."  ^  But  when  the  de- 
fendant is  charged  before  the  magistrate  with  an  oflfence  under  the  4th 
section  of  Lord  Campbell's  Act,  that  is,  with  maliciously  publishing  a  de- 
famatory libel  Icnovjing  the  same  to  he  false,  there  it  is  open  to  the  defend- 
ant to  call  evidence  of  the  truth  of  the  libel,  so  as,  if  possible,  to  reduce  the 
charge  to  the  minor  ofi'ence.* 

1  See  anfe,  pp.  .362,  385. 

2  30  &  31  A' ict.  c.  35,  s.  3,  Eussell  Gumey's  Act. 

8  Per  Cockburn,  C.J.,  in  R.  v.  Sir  Robert  Garden  (Labouchere's  case),  5  Q.  B.  D. 
6,  7  ;  49  L.  J.  ]\[.  C.  1  ;    28  W.  R.  133  ;  41  L.  T.  504  ;  14  Cox,  C.  C.  359. 

*  Ejc  jiarie,  Ellissen  (not  reported),  approved  by  Lush,  J.,  in  R.  v.  Garden,  5  Q.  B. 
D.  11,  13. 

492 


INDICTMENT.  *  573 

Since  the  decision  in  E.  v.  Garden,  it  has  been  ruled  at  the  Mansion 
House  that  a  defendant  might  not  cross-examine  his  prosecutor  "  to  credit," 
if  the  questions  asked  would  also  tend  to  show  the  truth  of  the  libel.  An 
adjournment  for  a  fortnight  was  granted  by  Sir  Thomas  Owden  to  enable 
the  defendant  to  apply  for  a  mandamus,  but  no  such  application  was  ever 
made.^ 

The  defendant  may  himself  in  every  case  make  a  statement  before  the 
magistrates,  but  it  is  more  prudent  for  him  to  say  nothing,  except  in  cases 
where  he  has  himself  seen  or  heard  something  justifying  the  libel. 

If  the  accused  does  not  appear  in  answer  to  the  summons,  the  magistrate 
may,  on  proof  of  due  service,  go  into  the  case  in  his  absence,  but  he  more 
usually  issues  a  warrant  for  the  apprehension  of  the  defendant.'^ 

If  the  magistrate  decide  to  send  the  case  for  trial,  the  defendant  is  en- 
titled to  be  bailed.  Reasonable,  but  not  excessive,  bail  should  be  demanded, 
and  it  is  for  the  justices  to  determine  whether  the  sureties  offered  are  suf- 
ficient. If  no  sufficient  bail  can  be  found,  the  accused  must  be  committed 
to  prison,  but  if  sufficient  sureties  come  forward,  the  magistrates  have  no 
discretion  but  to  allow  the  defendant  to  be  at  large  on  bail. 

*  In  the  case  of  an  obscene  libel,  the  prisoner  may  be  committed    *  574 
for  trial  to  the  Quarter  Sessions ;  in  every  other  case  he  must  be 
sent  to  the  Assizes  or  Central  Criminal  Court.^ 

Cases  of  libel  are  never  disposed  of  summarily  by  the  magistrate  or  jus- 
tices in  petty  sessions.  It  is  true  that  there  is  authority  for  holding  that 
in  some  trifling  cases  of  libel  the  justices  have  the  power  to  demand  sureties 
of  good  behavior  from  the  libeller,  instead  of  committing  him  for  trial ;  and 
may  themselves,  in  default  of  sueh  sureties,  commit  him  to  gaol.'*.  But 
such  power  is  never  exercised,  and  never  should  be,  for  it  is  clearly  a  vio- 
lation of  the  principle  of  Fox's  Libel  Act,  that  libel  or  no  libel  is  a  question 
for  the  jury. 

As  to  the  powers  of  magistrates,  &c.,  in  the  case  of  obscene  books  and 
prints,  see  ante,  p.  405,  c.  XV,  In  case  of  a  seditious  libel,  there  is  no 
power  to  issue  a  search  warrant  to  seize  the  author's  papers.^ 


Indictment. 

Counsel  must  next  be  instructed  to  draft  the  indictment.     This  requires 
great  care  ;  as  the  old  rules  of  pleading  apply  in  all  their  strictness.     The 

1  R.  V.  Cripps,  Tiines  for  November  4th  and  18th,  1880. 

2  11  &  12  Vict.  c.  42,  ss.  1,9.  s  5  &  g  Vict.  c.  38,  s.  1. 

*  Haylock  v.  Sparke,  1  E.  &  B.  471 ;  22  L.  J.  II.  C.  67,  overruling  the  dictum  of 
Lord  Camden  in  K.  v.  Wilkes,  2  Wilkes,  2  Wils.  151  ;  4  Burr.  2527. 

5  Leach's  case,  11  St.  Tr.  307  ;  19  Howell's  St.  T.  1002  ;  Entick  v.  Carrington  and 
others,  11  St.  Tr.  317  ;  19  Howell's  St.  Tr.  1029. 

493 


*  574  PRACTICE  AND  EVIDENCE. 

words  must  be  set  out  verbatim,  however  great  their  length.^  (a)  Any 
material  variation  between  the  words  as  laid  in  the  indictment  and  the 
words  proved  at  the  trial  will  still  be  fatal,  in  spite  of  the  powers  of  amend- 
ment given  b3^  the  14  &  15  Vict.  c.  100,  s.  1.  (6) 

If  the  words  are  in  a  foreign  language  they  must  be  set  out  in  the  origi- 
nal,  and  a  correct  translation   added.^      The  indictment  must  expressly 
charge  the  defendant  with  "  publishing ; "  as  merely  writing  a  libel  is  no 
crime.  ^    It  must  also  declare  that  the  libel  was  written  and  published 

*  575    "  of  and  concerning  "  the  prosecutor,  (c).     The  *  omission  of  those 

words  was  held  fatal  in  R.  v.  Marsden.'*  But  if  it  sufficiently  appears 
from  other  allegations  in  the  indictment  to  whom  the  libel  refers,  it  will  be 
held  good.^  The  indictment  must  also  aver  all  facts  necessary  to  explain 
the  meaning  of  the  libel  and  to  connect  it  with  the  person  defamed  :  for 
s.  Gl  of  the  Common  Law  Procedure  Act,  1852,  applies  only  to  pleadings 
in  civil  cases,  so  that  in  an  indictment  an  innuendo  still  requires  a  prefatory 
averment  to  support  it.  Hence  there  is  still  considerable  technicality  in 
criminal  pleading ;  although  modern  judges  will  never  be  quite  so  strict  as 
their  predecessors.®  The  innuendo  can  only  explain  and  point  tlie  defama- 
tory meaning  of  the  words  ;  it  must  not  introduce  new  matter.  The  ju^dg- 
ment  of  De  Grey,  C.J.,  in  R.  v.  Home  (1777),''  "  has  universally  been  con- 
sidered the  best  and  most  perfect  exposition  of  the  law  on  this  subject."  ^ 
See  further  as  to  the  office  of  the  innuendo.®  Extrinsic  facts  must  be 
averred  where  without  such  averments  the  libel  would  appear  innocent  or 
unmeaning.'*'*  But  where  the  writing  on  the  face  of  it  imports  a  libel,  no 
innuendo  is  necessary,  nor  any  introductory  averments. ■'^ 

1  R.  V.  Bradlaugh  and  Besant  (C.A.),  3  Q.  B.  D.  607  ;  48  L.  J.  M.  C.  5  ;  26  W.  R. 
410  ;  38  L.  T.  118. 

2  Zenobio  v.  Axtell,  6  T.  R.  162  ;  3  M.  &  S.  116  ;  R.  v.  Goldstein,  3  Brod.   &  B. 
:201  ;  7  Moore,  1  ;  10  Price,  88  ;  R.  &  R.  C.  C.  473. 

8  R.  V.  Burdett,  4  B.  &  Aid.  95. 
4  4  M.  &  S.  164. 

6  Gregory  v.  The  Queen,  15  Q.  B.  957  ;  15  Jur.  74  ;  5  Cox,  C.  C.  247. 

6  See  ante,  pp.  118,  9.  '  Cowp.  682  ;  11  St.  Tr.  264  ;  20  How.  St.  Tr.  651. 

«  Per  Abbott,  C.J.,  in  R.  v.  Burdett,  4  B.  &  Aid.  316. 

9  Ante,  pp.  100-104.  i»  R.  ^-  Yates,  12  Cox,  C.  C.  233. 

"  R.  V.  Tutchin  (1704),  14  How.  St.  Tr.  1095  ;  5  St.  Tr.  527  ;  2  Lord  Raym.  1061 ; 
1  Salk.  50  ;  6  Mod.  268. 

(a)   See   Commonwealth  v.  Tarbox,    1  402  ;  Commonwealth  v.  Sweeney,  10  Serg. 

Cush.   66  ;    Commonwealth  v.  Wright,  ih.  &  R.  173  ;  State  v.  Brownlow,  7  Humph. 

46  ;  Commonwealth  v.  Harmon,  2  Gray,  63  ;  Walsh  v.  State,  2  McCord,  248. 
289  ;  State  v.   Brownlow,   7   Humph.  63  ;  (c)  State  v.  Henderson,   1   Rich.  179  ; 

1  Bishop,  Crim.  Proc.  §§  559-561.  State  v.  Brownlow,  7  Humph.  63  ;  Taylor 

{b)  Commonwealth  v.  Tarbox,  1  Cush.  v.  State,  4  Ga.  14. 
66  ;   Commonwealth  v.  Varney,  10  Cush. 

494 


PLEADING   TO   THE   IXDICTME:NT.  *  575 

In  1652,  RoUe,  C.J.,  laid  it  down  "  that  in  an  indictment  a  thing  must 
be  expressed  to  be  done /also  et  malitiose,  because  that  is  the  usual  form."  ^ 
But  in  E.  V.  Burks,^  the  Court  of  King's  Bench  decided  that  in  an  informa- 
tion, at  all  events,  it  is  unnecessary  to  allege  that  the  libellous  matter  is 
false.  Still  it  is  safer  to  insert  such  an  averment,  "  because  that  is  the 
usual  form." 

In  some  few  cases  it  is  necessary  to  aver  a  special  intent.  Thus  where  a 
letter  is  sent  direct  to  the  prosecutor,  and  published  to  no  one  else,  an  in- 
tention to  provoke  the  prosecutor  and  to  excite  him  to  a  breach  of  the 
peace  must  be  alleged.  An  allegation  that  it  was  sent  with  intent  to  in- 
jure, prejudice,  and  aggrieve  him  in  his  profession  and  reputation  cannot, 
in  such  a  case,  be  supported.^  So  where  a  letter  containing  a  libel 
on  a  married  man  *  is  sent  to  his  wife  "it  ought  to  be  alleged  as  *  576 
sent  with  intent  to  disturb  the  domestic  harmony  of  the  parties."  * 
So  in  the  case  of  a  libel  on  a  person  deceased,  an  intent  should  be 
alleged  to  bring  contempt  and  scandal  on  his  family  and  relations  and  to 
provoke  them  to  a  breach  of  the  peace.  ^ 

There  is  no  objection  to  joining  several  counts,  each  for  a  separate  libel, 
in  the  same  indictment.® 

All  who  are  in  any  way  concerned  in  the  composition  or  publication  of  a 
libel  may  be  joined  in  the  same  indictment.  For  by  the  24  &  25  Vict.  c. 
94,  s.  8,  "  whosoever  shall  aid,  abet,  counsel  or  procure  the  commission  of 
any  misdemeanor,  whether  indictable  at  common  law,  or  by  virtue  of  any 
statute,  may  be  tried,  indicted,  and  punished  as  a  principal  offender." 

Pleading  to  the  Indictment. 

When  a  true  bill  has  been  found  by  the  grand  jury  the  defendant  is  ar- 
raigned, the  substance  of  the  indictment  is  read  over  to  him,  and  he  is  then 
called  on  to  plead.     At  common  law  he  might  :  — 

(1)  Plead  guilty ; 

(2)  Plead  to  the  jurisdiction  of  the  Court  j 

(3)  Plead  specially  in  bar :  — 
(a)  Autrefois  acquit ; 

(6)  Autrefois  convict ; 
(c)  Pardon  ; 

(4)  Demur  to  the  indictment ; 

(5)  Plead  the  general  issue  —  Not  Guilty. 

By  virtue  of  6  &  7  Vict.  c.  96,  s.  6,  he  may  now  also  — 

1  Anon.  Style,  392.  2  7  t.  R.  4. 

3  Per  Abbott,  J.,  in  R.  v.  "Wegener,  2  Stark.  245. 
«  Ih.  5  K.  ^,.  Topham,  4  T.  R.  126,  ante,  p.  376. 

*"  Per  Lord  Ellenborough,  in  R.  v.  Jones,  2  Camp.  132. 

495 


*  576  PRACTICE   AND  EVIDENCE. 

(G)  Plead  a  justification  that  the  words  are  true  and  that  it  was  for  the 
public  benefit  that  they  should  be  published.^  This  plea  may  be  pleaded 
with  Not  Guilty ;  it  must  be  entered  and  filed  at  the  Crown  Office  or  with 
the  Clerk  of  Assize,  and  a  copy  delivered  to  the  prosecutor. 

(7)  If  the  prisoner  stands  mute  of  malice,  or  does  not  answer  directly  to 
the  charge,  a  plea  of  Not  Guilty  shall  be  entered  for  him,  and  the  trial  shall 
proceed  as  though  he  had  actually  pleade<l  the  same.^ 

There  is  now  but   little  use   in   demuning  to   an  indictment, 

*  577    *  except  where  the  words  are  clearly  not  libellous  in  themselves, 

and  are  not  reasonably  susceptible  of  the  meaning  ascribed  to  them 
by  the  innuendo.  In  such  a  case  it  might  be  well  to  put  an  end  to  the 
case  as  quickly  as  possible.  But  if  the  demurrer  he  for  a  mere  formal  de- 
fect, the  Court  has  power  to  amend,  after  the  demurrer,  either  an  informa- 
tion,^ or  now  even  an  indictment.*  If,  on  the  other  hand,  the  defect  is  one 
of  substance,  it  will  not  be  waived  by  pleading  over,  nor  will  it  be  cured 
by  verdict ;  but  the  defendant  may  still  bring  error,  or  move  in  arrest  of 
judgment  after  conviction.^  ^loreover  there  is  this  danger  in  demurring, 
that  the  defendant  may  not  demur  and  plead  Not  Guilty  at  the  same  time  :  ® 
hence,  in  strict  laAV,  if  he  fail  on  his  demurrer,  final  judgment  will  be  en- 
tered for  the  Crown  on  the  whole  case.'  But  the  Court  has  power  to  per- 
mit the  defendant  afterwards  to  plead  over,  and  in  these  more  merciful 
days  will  generally  exercise  that  power.* 

The  plea  of  Not  Guilty  puts  the  jorosecutor  to  proof  of  every  material 
allegation  in  the  indictment.  The  defendant  may  show  under  this  plea 
that  the  libel  was  a  fair  and  bond  fide  comment  on  a  matter  of  public  inter- 
est, that  the  occasion  of  publication  was  privileged,  and  may  indeed  raise 
every  other  defence  permitted  him  by  law,  except  that  the  libel  is  true. 

It  is  only  in  the  case  of  a  defamatory  libel  on  a  private  individual  that 
the  defendant  may  justify  under  Lord  Campbell's  Act.  And  he  does  so  at 
his  peril :  for  placing  such  a  plea  on  the  record  will  be  deemed  an  aggra- 
vation of  his  offence,  should  he  fail  to  prove  it.  By  the  express  words  of 
Lord  Campbell's  Act,  a  plea  of  justification  under  s.  6  shall  be  pleaded  "in 
the  manner  now  required  in  pleading  a  justification  to  an  action  for  defama- 
tion," as  to  which  see  ante,  pp.  170,  485.  But  in  spite  of  these  words 
there  is  no  power  in  any  Court  to  order  particulars  of  such  a  plea  to  an 
indictment  or  information.     If  sufficient  details  be  not  given  in  the  plea, 

1  See  ante,  p.  388.  27^8  Geo.  IV.  c.  28,  s.  2. 

8  R.  V.  Wilkes,  4  Bun-.  2568  ;  R.  v.  Holland,  4  T.  R.  457. 

4  14  &  15  Vict.  c.  100,  ss.  1,  2,  3,  25. 

5  See  14  &  15  Vict.  c.  100,  s.  25.  ^  R.  v.  Odgers,  2  Moo.  &  Rob.  479. 

7  R.  V.  Taylor,  3  B.  &  C.  509,  515  ;  5  D.  &  R.  422. 

8  R.  V.  Birmingham  &  Gloucester  Railway  Co.,  3  Q.  B.  223,  233  ;  10  L.  J.  (M.  C.) 
136. 

496 


CERTIORAKI.  *  577 

the  only  oourse  is  for  the  prosecutor  to  demur.  ^     To  such  a  plea 
the  prosecutor  may  *  reply  generally,  denying  the  whole  thereof.^       oT8 
The  other  pleas  mentioned  above  are  now  of  rare  occurrence.^ 

Certiorari. 

An  application  is  frequently  made  to  the  Queen's  Bench  Division  for  a 
writ  of  cer^iorc/ri  to  bring  up  an  indictment  for  libel  from  an  inferior  Court 
that  it  may  be  tried  in  a  Superior  Court.  The  application  is  frequently  made 
before  the  indictment  is  found  by  the  grand  jury,  the  Court  being  asked 
to  remove  "any  indictment  which  may  be  found."  It  must  of  course  be 
made  before  verdict.  In  no  other  way  can  the  Court  change  the  venue  in 
a  criminal  case.*  The  advantages  obtained  by  the  removal  are,  amongst 
others,  that  in  the  Queen's  Bench  Division  a  special  jury  can  be  secured, 
and  that  the  defendant  can  move  the  Court  for  a  new  trial,  if  convicted. 

Wliere  the  application  is  made  by  the  Attorney-General  officially,  the 
writ  issues  as  a  matter  of  course.®  But  where  a  private  individual  applies 
for  the  writ,  whether  prosecutor  or  defendant,  he  will  have  to  file  affidavits 
showing  some  special  ground  for  the  removal,  arising  out  of  the  circum- 
stances of  the  particular  case ;  and  he  must  also  enter  into  recognizances 
to  pay  all  costs  incurred  subsequent  to  the  removal,  if  he  be  ultimately 
unsuccessfLd.®  The  application  may  in  vacation  be  made  to  a  judge  at 
chambers.'' 

One  of  several  defendants  may  obtain  tlie  Avrit :  if  he  does,  this  will 
remove  the  indictment  as  to  all.^  But  the  judge  who  grants  the  certiorari 
will  require  the  defendant  who  applies  for  it  to  give  security  for  the  costs 
of  the  prosecution  occasioned  by  the  removal,  in  the  event  of  any  one  of 
the  defendants  being  convicted.® 

The  affidavits  should  be  entitled  "  in  the  Queen's  Bench  Division  "  sim- 
ply.    The  mere  fact  that  the  defendant  desires  a  special  jury  is  not 
alone  a  sufficient  ground  for  removal. ^°    *  Xor  is  it  enough  to  show    *  579 
on  affidavit  that  difficult  questions  of  law  may  arise, ^^  especially  if 
the  indictment  be  in  the  Central  Criminal  Court. ^•^    But  if  it  can  be  proved 

1  R.  V.  Hoggan,  Times,  for  Nov.  4th,  1880. 

^  See  precedents  o("  such  plea  and  replication  in  Appendix  A.,  Nos.  70,  71. 

'  For  a  plea  to  the  jurisdiction  of  the  Court  in  a  criminal  case  of  libel,  and  a  de- 
murrer thereto,  see  R.  v.  Hon.  Robert  Johnson,  6  East,  583  ;  2  Smith,  591  ;  29  How. 
St.  Tr.  103. 

<  R.  V.  Casey,  13  Cox,  C.  C.  614.  5  R.  v.  Thomas,  4  M.  &  S.  442. 

«  16  &  17  Vict.  c.  30,  ss.  4,  5.  7  5  &  6  \Vm.  &  Mary,  c.  11,  s.  3. 

8  R.  V.  Boxall,  4  A.  &  E.  513. 

9  R.  V.  Jewell,  7  E.  &  B.  140  ;  26  L.  J.  Q.  B.  177  ;  R.  v.  Foulkes,  1  L.  M.  &  P. 
720;  20  L.  J.  (M.  C.)  196. 

10  R.  V.  Jlorton,  1  Dowl.  N.  S.  543.  "  R.  v.  Joule,  5  A.  &  E.  539. 

12  K.  V.  Templar,  1  Xev.  &  P.  91. 

32  497 


*  579  PRACTICE  AND  EVIDENCE. 

that  a  fair  and  impartial  trial  of  the  case  cannot  be  had  in  the  Court  below 
the  application  will  be  readily  granted.^ 

Formerly  in  cases  of  misdemeanor  the  Court  made  the  rule  absolute  in 
the  first  instance.^  But  now  in  all  cases  a  rule  nisi  only  is  granted,  unless 
there  be  great  urgency.  If  a  rule  nisi  for  such  a  writ  be  obtained,  the 
Court  below  will,  as  of  course,  order  the  trial  to  stand  over  tiU  the  rule  can 
be  argued.  If  the  rule  be  made  absolute,  either  prosecutor  or  defendant 
can  apply  for  a  special  jury.^  After  the  removal  the  defendant  must  appear 
in  the  Queen's  Bench  Division;  and  plead  or  demur  to  the  indictment 
within  four  days,  if  not  immediately ;  but  the  Court  wiU  grant  him  further 
time  on  good  cause  shown.'* 

Tlie  trial  may  take  place,  either  at  bar  in  the  Queen's  Bench  Division  at 
Westminster,  or  at  the  Assizes  on  the  civil  side,  or  at  the  Central  Criminal 
Court. ^  A  successful  prosecutor  will  be  entitled  to  his  costs,  whether  he 
be  "  the  party  grieved  or  injured  "  by  the  defendant's  words  or  not.^  The 
costs  will  be  taxed  under  a  side-bar  rule ;  and  if  they  are  not  paid  within 
ten  days  the  recognizance  will  be  estreated,  and  the  sureties  compelled  to 
pay.'  The  sureties  may  then  sue  the  defendant  and  recover  the  amount 
for  which  they  became  bail  in  an  action  for  money  paid  at  the  defendant's 
lequest.* 

A  writ  of  certiorari  may  also  be  applied  for  to  bring  up  an  indictment 

in  order  that  its  validity  may  be  considered  and  determined,  and  that  it 

may  be  quashed,  if  proved  invalid.     Such  an  application  must  be 

*  580    made  after  the  bill  is  found  and  *  before  judgment  has  been  given 

thereon,  for  after  judgment  has  been  given,  the  record  can  only  be 
removed  by  writ  of  error.^  The  Court  below  has  full  power  to  hear  a 
motion  in  arrest  of  judgment, 

1  R.  V.  Hunt  and  others,  3  B.  &  Aid.  444 ;  R.  v.  Palmer,  5  E.  &  B.  1024. 

2  R.  V.  Spencer,  8  Dowl.  127 ;  R.  v.  Chipping  Sodbury,  3  N.  &  M.  104. 
8  6  Geo.  IV.  c.  50,  s.  30. 

♦  60  Geo.  III.  and  1  Geo.  IV.  c,  4,  ss.  1,  2. 
8  19  &  20  Vict.  c.  16,  s.  1. 

6  R.  V.  Oastler,  L.  R.  9  Q.  B.  132  ;  43  L.  J.  Q.  B.  42  ;  22  W.  R.  490 ;  29  L.  T. 
830  ;  ovetTuling  R.  v.  Dewhurst,  5  B.  &  Ad.  405. 
T  16  &  17  Vict.  e.  30,  s.  6. 

8  Jones  V.  Orchard,  16  C.  B.  614 ;  24  L.  J.  C.  P.  229  ;  3  W.  R.  554. 

9  R.  V.  Seton,  7  T.  R.  373  ;  In  re  Pratt,  7  A.  &  E.  27  ;  R.  v.  Unwin,  7  Dowl.  578 ; 
R.  V.  Christian,  12  L.  J.  (M.  C.)  26 ;  R.  v.  WiLson,  14  L.  J.  (M.  C.)  3. 

498 


EVIDENCE  FOR   THE   PEOSECUTION.  *  580 


Evidence  for  the  Prosecution. 

When  the  case  comes  on  for  trial,  the  onus  lies  on  the  prosecutor  to 
prove :  — 

(1.)  That  the  defendant  published  the  defamatory  words.^ 

(2.)  That  he  published  it  in  the  county  named  as  venue  in  the  indict- 
ment, (a) 

(3.)  That  the  matter  so  published  by  the  defendant  is  a  libel.  Where 
the  words  are  not  libellous  on  the  face  of  them,  this  involves  proof  of  the 
innuendoes  and  other  prefatory  averments.^ 

(4.)  In  a  few  cases  the  prosecution  must  also  prove  a  special  intent.^ 
But  malice  need  never  be  proved,  unless  the  occasion  be  privileged. 

(5.)  If  the  indictment  be  framed  under  s.  4  of  Lord  Campbell's  Act, 
the  prosecutor  must  give  some  evidence  that  the  defendant  knew  that  the 
words  were  false.  But  in  no  other  case  need  the  prosecutor  give  any  evi- 
dence to  show  that  the  libel  is  false. 

(1.)  The  proof  of  publication  in  crimiual  cases  is  precisely  the  same  as 
in  civil  cases,  save  that  it  is  not  essential  to  prove  a  publication  to  a  third 
person,  where  the  indictment  alleges  an  intent  to  provoke  a  br«ach  of  the 
peace.*  Section  27  of  the  Common  Law  Procedure  Act,  1854,^  as  to  com- 
parison of  handwriting,  which  was  originally  confined  to  civil  pro- 
ceedings (s.  103)  now  applies  to  criminal  trials  as  well.®  *  Who-  ool 
ever  requests  or  procures  another  to  write  or  publish  a  libel  will  be 
held  equally  guilty  with  the  actual  publisher.'' 

(2.)  It  is,  however,  necessary  to  further  prove  in  a  criminal  case  that  the 
prisoner  published  the  libel  in  the  county  in  which  the  venue  is  laid. 
However,  if  the  defendant  write  a  libellous  letter  and  cause  it  to  be  posted, 
that  letter  is  published  both  in  the  county  where  it  is  posted,  and  in  the 

1  As  to  what  is  a  sufficient  publication  in  law,  see  ante,  c.  VI.  pp.  150-  168.  As  to 
constructive  publication  by  the  act  of  the  defendant's  servant  or  agent,  see  ante, 
pp.  360-365. 

2  See  ante,  p.  575.  ^  See  ante,  p.  376. 

*  R.  V.  Wegener,  2  Stark.  245  ;  Phillips  v.  Jansen,  2  Esp.  624  ;  Clutterbuck  v. 
Chaffers,  1  Stark.  471. 

5  Ante,  p.  533. 

6  28  &  29  Vict.  c.  18,  s.  8.  See  also  R.  v.  Beare,  1  Lord  Raym.  414  ;  12  Mod.  221 ; 
2  Salk.  417  ;  Carth.  409  ;  Holt,  422  ;  R.  v.  Slaney,  5  C.  &  P.  213. 

7  R.  V.  Cooper,  8  Q.  B.  533  ;  15  L.  J.  Q.  B.  206. 

(ffl)  It  is  not  necessary  to  aver  that  the  of  time  and  place  is  ordinarily  immaterial, 

words  were  published   within  the   State.  Pegram  v.  Stoltz,  67  N.  Car.  144  ;  Potter 

Emmerson  v.  Marvel,  55  Ind.  265  ;  Offutt  v.  Thompson,   22  Barb.  89.       It  is  usual 

V.   Earlywine,  4  Blackf.  460  ;  Linville  v.  however  to  allcije  them.     See  e.g.  Rathbuu 

Early  wine,  ih.  469.     Indeed  the  allegation  v.  Emigh,  6  Wend.  407. 

499 


*  581  PKACTICB  AND   EVIDENCE. 

county  to  which  it  is  addressed.^  If  the  person  to  whom  it  is  addressed 
be  not  then  at  the  address  given  on  the  envelope,  and  the  letter  be  for- 
warded unopened  to  him  at  his  lodgings  in  ]\[iddlesex,  and  there  opened, 
then  this  is  a  publication  by  the  defendant  in  ]\Iiddlesex.^  The  post-mark 
is  sufficient  primd  facie  evidence  that  the  letter  was  in  the  post-office  named 
on  the  date  of  the  mark.^  These  cases  must  be  taken  to  overrule  the  dio- 
tum  of  Lord  Ellenborough  in  R.  v.  Watson.*  An  admission  by  the  de- 
fendant that  he  wrote  the  libel  is  no  admission  tliat  he  published  it,  still 
less  that  he  published  it  in  any  particular  county.^ 

(3.)  The  prosecutor  must  now  put  in  the  libel  and  have  it  read  to  the 
jury.  The  libel  itself  must,  if  possible,  be  produced  at  the  trial.  If  it  be 
in  the  possession  of  the  defendant,  and  notice  has  been  given  to  him  to 
produce  it,  then  if  he  refuses  so  to  do,  secondary  evidence  may  be  given  of 
its  contents.®  IS'otice  to  produce  must  be  given  a  reasonable  time  before 
the  trial.  iSTo  general  rule  can  be  laid  down  as  to  what  is  a  reasonable 
time  ;  each  case  must  be  governed  by  its  particular  circumstances ;  but 
if  it  appear  that  since  the  notice  was  given  there  was  an  opportunity  of 
fetching  the  document  the  notice  will  be  held  sufficient.''  Any  other  docu- 
ments which  explain  the  libel,  and  are  referred  to  in  it,  may  also  be  put 
in  and  read.* 

Any  variance  between  the  words  as  proved  and  the  words  as 

*  582    *  laid  will  be  fatal,  if  it  in  any  way  affects  the  sense.      But  a 

variance  which  is  immaterial  to  the  merits  of  the  case  may  be 
amended  by  the  judge  at  the  trial,  if  he  thinks  that  such  amendment  can- 
not prejudice  the  defendant  in  his  defence  on  the  merits.^ 

The  prosecution  must  further  prove  the  innuendoes  and  all  explanatory 
averments  of  extrinsic  facts,  whenever  such  proof  is  necessary  to  bring  out 
the  libellous  nature  of  the  publication,  or  to  point  its  application  to  the 
person  defamed.  That  asterisks  or  blanks  are  left  where  the  name  of  the 
person  defamed  should  appear  is  no  defence,  if  those  who  knew  the  cir- 
cumstances understood  the  libel  to  refer  to  the  prosecutor.  Any  declara- 
tions of  the  defendant  as  to  what  he  meant  are  admissible  in  evidence 
against  him.^°     Strict  proof  must  be  given  of  all  material  and  necessary 

1  R.  V.  Burdett,  4  B.  &  Aid.  95  ;  R.  v.  Girdwood,  1  Leach,  169  ;  East  P.  C.  1120,  5. 

2  R.  V.  Watson,  1  Canipb.  215. 

8  R.  V.  Plumer,  Russ.  &  Ry.  264  ;  R.  v.  Canning,  19  St.  Tr.  370  ;  R.  v.  Hon. 
Robert  Johnson,  7  East,  65  ;  3  Smith,  94  ;  29  How.  St.  Tr.  103  ;  Stocken  v.  CoUiu, 
7  M.   &  W.  515  ;  10  L.  J.  Ex.  227.  *  1  Camp.  215. 

5  The  Seven  Bishops'  Case,  4  St.  Tr.  304  ;  R.  v.  Burdett,  4  B.  &  Aid.  95. 

6  Attorney-General  v.  Le  Merchant,  2  T.  R.  201,  n. 
^  Per  Bramwell,  B.,  in  R.  v.  Barker,  1  F.  &  F.  326, 
8  R.  V.  Slaney,  5  C.  &  P.  213. 

fl  7  Geo.  TV.  c.  64,  s.  20  ;  14  &  15  Vict.  c.  100,  ss.  1,  24,  25. 
'"  R.  V.  Tuc-ker,  Ry.  &  Moo.  134. 

500 


EVIDENCE  FOE  THE  DEFENCE.  *  582 

allegations  in  the  indictment,  which  the  libel  itself  does  not  admit  to  be 
true.^ 

It  will  then  be  for  the  jury,  after  considering  this  evidence,  to  say 
whether  the  publication,  when  taken  as  a  whole,  is  or  is  not  a  libel. 

Evidence  for  the  Defence. 

The  defendant  may  call  evidence  rebutting  the  case  for  the  prosecution, 
e.g.,  he  may  dispute  the  fact  of  publication,  or  negative  the  innuendo,  or 
show  that  tlie  libel  referred  to  some  one  else,  not  to  the  prosecutor.  He  may 
give  in  evidence  any  facts  which  put  a  different  complexion  on  the  libel, 
e.g.,  other  passages  contained  in  the  same  publication,  fairly  connected  Avith 
the  same  subject.^  So,  too,  the  defendant  may  give  evidence  of  any  colla- 
teral facts  which  show  that  the  libel  complained  of  is  a  fair  and  bond 
fide  comment  on  a  matter  of  public  interest,  or  is  privileged  by  reason  of 
the  occasion  on  which  it  was  published.  Unless  such  privilege  be  absolute, 
the  prosecutor  may  rebut  this  defence  by  evidence  of  express  malice,  pre- 
cisely as  in  civil  cascs.^ 

Tlie  defendant  may  also  cross-examine  the  plaintiff's  Avitnesses  as 
to  any  previous  statements  made  by  them  on  the  subject-matter  *  of    *  583 
the  indictment,  and  if  such  statements  were  reduced  into  writilig, 
such  writing  may  be  produced  to  contradict  them.'* 

The  defendant  may  call  evidence  to  show  that  though  he  published  the 
libel  with  his  own  hand,  he  was  not  at  the  time  conscious  of  its  contents. 
The  onus  of  proving  this  lies  on  the  defendant ;  the  bare  delivery  of  the 
letter,  though  sealed,  h&mg  primd  facie  evidence  of  a  knowledge  of  its  con- 
tents.^ But  if  the  defendant  can  prove  that  he  cannot  read,  or  that  he 
never  had  any  opportunity  of  reading  the  libel,  but  delivered  it  pursuant 
to  orders,  having  no  reason  to  suppose  its  contents  illegal,  this  will  be  a 
defence.® 

Again,  where  evidence  has  been  given  which  has  established  a  priyjid 
facie  case  of  publication  against  the  defendant  by  the  act  of  some  other 
person  acting  by  his  authority,  the  defendant  may  prove  that  such  publica- 
tion was  made  without  his  authority,  consent,  or  knowledge,  and  arose 
from  no  want  of  due  care  or  caution  on  his  part.''  But  it  seems  that  no 
defendant  has  ever  succeeded  in  proving  such  a  defence.* 

1  Vx.  V.  Sutton,  4  M.  &  S.  548  ;  11.  v.  Holt,  5  T.  R.  436  ;  E.  v.  JIaitin,  2  Camp.  100 ; 
R.  V.  Budd,  5  Esp.  230. 

2  R.  V.  Lambert  and  Perry,  2  Camp.  398  ;  31  How.  St.  Tr.  340. 
8  Ante,  c.  IX.  pp.  264-288. 

*  28  &  29  Vict.  c.  18,  ss.  4  &  5.  As  to  proving  a  previous  conviction  of  a  witness, 
see  ante,  p.  546. 

5  R.  V.  Girdwood,  1  Leach,  169  ;  East  P.  C.  1120,  5. 

6  See  ante,  pp.  384,  7.  7  6  &  7  Vict.  c.  96,  s.  7. 

8  See  R.  V.  Holbrook  and  others,  3  Q.  B.  D.  60  ;  47  L.  J.  Q.  B.  35  ;  26  W.  R.  144  ; 

501 


*  583  PRACTICE   AND   EVIDENCE. 

Also,  if  the  defendant  has  pleaded  a  plea  under  Lord  Campbell's  Act,  hut 
not  otherwise,  he  may  give  evidence  of  the  truth  of  the  libel.  But  the 
truth  alone  is  no  defence,  unless  the  defendant  can  also  show  that  it  was 
for  the  public  benefit  that  the  matters  charged  should  be  published.  Ko 
such  plea  can  be  pleaded  in  the  case  of  a  blasphemous,  obscene,  or  seditious 
libel. ^  If  a  general  charge  be  made  in  the  libel,  specific  instances  must  be 
set  out  in  the  "plea.  It  will  be  sufficient,  however,  if  at  the  trial  two  dis- 
tinct instances  are  proved  to  the  satisfaction  of  the  jury.^ 

Evidence  that  the  identical  charges  contained  in  the  libel  which  is  the 

subject  of  the  indictment  had,  before  the  time  of  composing  and  publishing 

such  libel,  appeared  in  another  publication  which  was  brought  to 

*  584    the  prosecutor's  knowledge,  *  and  against  the  publisher  of  which 

he  took  no  legal  proceedings,  is  not  admissible  either  at  common 
law  or  under  this  section.^  Where  the  libel  contains  several  charges,  aud 
the  defendant  fails  to  prove  the  truth  of  any  one  of  such  eharges,  the  jury 
must  of  necessity  find  a  verdict  for  the  Crown  ;  and  the  Court,  in  giving 
judgment,  is  bound  to  consider  whether  the  guilt  of  the  defendant  is  aggra- 
vated or  mitigated  by  the  plea,  and  by  the  evidence  given  to  prove  or  dis- 
prove it,  and  to  form  its  own  conclusion  on  the  whole  case.'* 

If  no  such  plea  has  been  placed  on  the  record,  no  evidence  can  be 
given  of  the  truth  of  the  defendant's  words.  But  if  evidence  be  admissible 
on  other  issues  in  the  case,  it  will  not  be  excluded  merely  because  it  tends 
to  show  the  trutli  of  the  libel.^ 

The  defendant  may  also,  as  in  other  criminal  cases,  call  evidence  of  his 
good  character :  but  such  evidence  would  be  of  very  little  use,  except,  per- 
haps, in  cases  of  mistaken  identity.  Evidence  in  mitigation  of  punishment 
is  not  generally  called  before  verdict ;  but  affidavits  may  be  filed  for  that 
purpose  after  the  trial.  That  rumors  to  the  same  effect  had  previously 
been  circulated  in  other  newspapers  is  no  justification  for  the  defendant's 
repeating  the  statement  in  his  own  paper,  especially  if  he  purports  to  speak 
from  authority.®  So,  too,  it  is  no  defence  to  a  charge  of  publishing  a  sedi- 
tious libel,  that  it  is  an  extract  from  an  American  paper,  reprinted  as  foreign 
news,  especially  if  such  seditious  extracts  be  habitually  published  by  the 
defendant,  at  a  time  of  great  political  excitement,  without  one  word  of 

37  L.  T.  530  ;  13  Cox,  C.  C.  6.50  ;  4  Q.  B.  D.  42  ;  48  L.  J.  Q.  B.  113  ;  27  W.  E.  313  ; 
39  L.  T.  536  ;  14  Cox,  C.  C.  185  ;  ante,  pp.  364,  5. 
1  R.  V.  Duffy,  9  Ir.  L.  R.  329  ;  2  Cox,  C.  C.  45. 

*  R.  V.  Labouchere  (Lambri's  case),  14  Cox,  C.  C.  419. 

'  R.  V.  Holt,  5  T.  R.  436  ;  R.  v.  Newman,  Dears.  C.  C.  85  ;  3  C.  &  K.  252  ;  1  E. 
&  B.  268  ;  22  L.  J.  Q.  B.  156  ;  17  Jur.  617. 

*  R.  V.  NcAvman,  1  E.  &  B.  558  ;  22  L.  J.  Q.  B.  156. 

5  R.  V.  Grant  and  others,  5  B.  &  Add.  1081  ;  3  N.  &  M.  106. 
^  R.  V.  Harvey  and  Chapman,  2  B.  &  C.  257. 

502 


PROCEEDINGS   AFTER   VERDICT.  *  584 

warning  or  one  note  of  disapproval.^  Some  of  the  judges  permit  the  pris- 
oner, although  defended  hy  counsel,  to  make  a  statement  to  the  jury  be- 
fore his  counsel  addresses  them.  When  this  is  done,  however,  it  would 
appear  that  the  counsel  for  the  prosecution  can  claim  the  right  to  reply 
generally,  after  the  counsel  for  the  prisoner  has  concluded  his  speech.  ** 

*  Summing  up  and  Verdict.  Oo5 

The  judge  at  the  conclusion  of  the  case  sums  up  the  evidence  to  the  jury, 
and  directs  the  jury  as  to  the  law.  Before  Fox's  Libel  Act,  it  had  come  to 
be  the  rule  that  the  judge,  not  the  jury,  should  decide  whether  or  no  the 
publication  was  a  libel.  The  judge  would  direct  the  jury  to  find  the  de- 
fendant guilty  on  proof  of  the  publication,  of  the  innuendoes,  and  of  the 
other  necessary  averments.^  But  that  Act  *  declares  and  enacts  that  on  the 
trial  of  an  indictment  or  information  for  libel  the  jury  may  give  a  general 
verdict  of  guilty  or  not  guilty  upon  the  whole  matter  put  in  issue  before 
them.  Or  the  jury  may  in  their  discretion  find  a  special  verdict  as  in  other 
criminal  cases.^  The  judge  of  course  may  still  direct  the  jury  on  any  point 
of  law,  stating  his  own  opinion  thereon  if  he  think  fit ;  but  the  question, 
libel  or  no  libel,  must  ultimately  be  decided  by  the  jury.  Fitzgerald,  J., 
thus  addressed  the  jury  in  a  case  of  seditious  libel :  —  "  You  are  the  sole 
judges  of  the  guilt  or  innocence  of  the  defendant.  The  judges  are  here  to 
give  any  help  they  can,  but  the  jury  are  the  judges  of  law  and  fact,  and  on 
them  rests  the  whole  responsibility.  In  this  sense  the  jury  are  the  true 
guardians  of  the  liberty  of  the  press."  ^  At  the  same  time  the  jury  should 
pay  attention  to  the  judge's  statement  of  the  law ;  and  then  take  the  al- 
leged libel  into  their  hands,  and  consider  it  carefully ;  not  dwelling  too 
much  on  isolated  passages,  but  judging  it  fairly  as  a  whole. 


Proceedings  after  Verdict. 

If  at  the  trial  the  defendant  was  acquitted,  no  further  proceedings  can 
be  taken ;  the  verdict  of  the  jury  is  conclusive  in  favor  of  the  defendant.' 
If,  however,  the  defendant  was  convicted,  then,  if  the  judge  before  whom 
the  trial  took  place  has  reserved  any  point  of  law  arising  thereout  for 

1  R.  v-Pigott,  11  Cox,  C.  C.  46. 

2  Per  Field,  J.,  in  B.  v.  Eyre  (Leeds  Assizes),  Times,  Nov.  6th,  1880. 

8  See  R.  V.  Woodfall,  5  Burr.  2661  ;  R.  r.  Shipley  (Dean  of  St.  Asaph),  21  St.  Tr. 
1043  ;  3  T.  R.  428  n.  ;  4  Dougl.  73  ;  R.  v.  Withers,  3  T.  R.  428. 

*  32  Geo.  III.  c.  60,  s.  1.  *  lb.  s.  3. 

6  R.  V.  Sullivan,  11  Cox,  C.  C.  52. 

1  R.  V.  Cohen  and  Jacob,  1  Stark.  516  ;  R.  v.  Mann,  4  M.  &  S.  337. 

503 


*  585  PEACTICE  AND  EVIDENCE. 

the  consideration  of  the  Court  above,  he  may  state  a  case  in  the 

*  586    *  manner  pointed  out  by  the  11  &  12  Vict.  c.  78,  s.  2.     This  case 

will  be  argued  in  the  Court  for  the  consideration  of  Crown  Cases 
Eeserved,  when  the  conviction  will  be  either  quashed  or  affirmed. 

If  no  such  point  has  been  reserved,  then  the  prisoner  may  move  in  ar- 
rest of  judgment,  as  in  a  civil  case  under  the  old  procedure,  on  the  ground 
that  the  words  as  laid  do  not  sufficiently  appear  to  be  libellous,  or  on  some 
other  "round  appearing  on  the  face  of  the  record.  Power  to  make  this 
motion  is  expressly  reserved  by  Fox's  Libel  Act.^  The  absence  of  any 
essential  introductory  averment  or  innuendo  will  be  a  good  ground  for  ar- 
resting judgment.^  But  mere  formal  defects  cannot  now  be  taken  advan- 
tage of  in  such  a  motion.^  And  "  it  is  a  general  rule  of  pleading  at  common 
law  that  where  an  averment  which  is  necessary  for  the  support  of  the  plead- 
ings is  imperfectly  stated,  and  the  verdict  on  an  issue  involving  that  aver- 
ment is  found,  if  it  appears  to  the  Court,  after  verdict,  that  the  verdict 
could  not  have  been  found  on  this  issue  without  proof  of  this  averment, 
then,  after  verdict,  the  defective  averment  which  might  have  been  bad  on 
demurrer  is  cured  by  the  verdict."  *  In  all  other  cases,  however,  every  ob- 
jection which  could  have  been  taken  by  demurrer  before  the  jury  were 
sworn  may  still  be  taken  either  upon  motion  in  arrest  of  judgment  or  by 
writ  of  error.^  Hence  if  an  indictment  for  publishing  an  obscene  book 
does  not  set  out  the  passage  or  passages  of  such  book  alleged  to  constitute 
the  offence,  but  only  refers  to  the  book  by  its  title,  this  defect  is  not  cured 

by  a  verdict  convicting  the  defendants,  nor  is  it  waived  by  the  de- 

*  587    fendant's  omitting  to  demur.^     *  Where,  however,  an   indictment 

or  information  contains  several  counts,  if  any  one  of  them  be  found 
good,  the  judgment  will  stand. '^ 

A  motion  in  arrest  of  judgment  should  be  made  before  sentence.  The 
judge  at  the  trial  may  reserve  the  point  for  the  consideration  of  the  Court 
of  Crown  Cases  Eeserved.     If  the  defendant  omit  to  make  such  motion,  still 

1  32  Geo.  III.  c.  60,  s.  4. 

2  R.  V.  Shipley  (Dean  of  St.  Asaph),  21  St.  Tr.  1043  ;  3  T.  R.  428  n.  ;  4  Dougl. 
73  ;  R.  V.  Topham,  4  T.  R.  126. 

3  14  &  15  Vict.  c.  100,  s.  25. 

*  Per  Blackburn,  J.,  in  Heymann  v.  The  Queen,  L.  R.  8  Q.  B.  105,  6  ;  21  W.  R 
357  ;  28  L.  T.  162  ;  per  Brett,  L.J.,  in  R.  v.  Aspinall,  2  Q.  B.  D.  57,  8  ;  46  L.  J 
M.  C.  145  ;  25  W.  R.  283  ;  36  L.  T.  297.  See  also  Serjeant  Williams'  note  (1)  to  Sten 
nel  V.  Hogg,  1  Wms.  Saund.  228  ;  R.  v.  Goldsmith,  L.  R.  2  C.  C.  R.  79  ;  42  L.  J.  M.  C 
94  ;  21  W.  R.  791  ;  28  L.  T.  881. 

5  Per  Cockburn,  C.  J.,  2  Q.  B.  D.  572  ;  and  per  Bramwell,  L.  J.  3  Q.  B.  D.  624 
R.  V.  Larkin,  Dears.  C.  C.  365  ;  23  L.  J.  M.  C.  125. 

«  Bradlaugh  and  Besant  v.  The  Queen  (C.  A.),  3  Q.  B.  D.  607  ;  48  L.  J.  M.  C.  5 
26  W.  R.  410  ;  38  L.  T.  118  ;  14  Cox,  C.  C.  68,  overruling  R.  v.  Bradlaugh  and  Be 
sant,  2  Q.  B.  D.  569  ;  46  L.  J.  M.  C.  286. 

'  R.  V.  Benfield  and  others,  2  Burr.  985. 

504 


PROCEEDINGS   AFTER   VERDICT.  *  587 

the  Court  will  of  itself  arrest  the  judgment,  if  on  a  review  of  the  case  it  be 
satisfied  that  the  defendant  has  not  been  found  guilty  of  any  offence  in  law.^ 
On  a  motion  in  arrest  of  judgment  the  Court  has  no  power  to  amend  the 
record.^  If  the  judgment  be  arrested,  all  the  proceedings  are  set  aside, 
and  judgment  of  acquittal  is  given ;  but  this  will  be  no  bar  to  a  fresh 
indictment,  for  the  defendant  Avas  never  really  in  jeopardy  under  the  de- 
fective indictment.^  So  if  the  judgment  against  him  be  reversed  on  a  writ 
of  error,  he  can  be  again  indicted  for  the  same  offence.* 

The  defendant  may  bring  a  writ  of  error,  after  conviction  and  sentence, 
on  obtaining  the  fiat  of  the  Attorney-General,  which  will  be  granted  on  a 
certificate  signed  by  the  prisoner's  counsel  whenever  reasonable  grounds 
are  shown.  That  the  same  point  has  been  raised  by  motion  in  arrest  of 
judgment  and  decided  against  the  prisoner  is  no  bar  to  bringing  error.^  If 
the  Attorney-General  refuse  to  grant  a  fiat,  the  defendant  has  no  remedy.^ 
If  the  judgment  below  be  reversed,  the  Court  of  Error  now  has  power  to 
pronounce  the  proper  judgment.'' 

"When  the  indictment  or  information  either  originated  in  the  Queen's 
Bench  Division  or  has  been  removed  thither  by  certiorari,  the  defendant 
may  also  move  for  a  new  trial,  as  in  a  civil  case.  The  motion  should  be 
made  within  the  first  four  days  of  the  next  term ;  though  the  time  may  be 
extended  ex  gratia  in  a  proper  case,  if  counsel  apply  for  an  extension  of 
time  within  the  four  days.^ 

*  A  new  trial  may  be  moved  for  on  the  ground  that  the  prosecu-  *  588 
tor  has  omitted  to  give  due  notice  of  trial,  or  that  the  verdict  has 

been  contrary  to  evidence,  or  to  the  direction  of  the  judge,  or  for  the  im- 
proper reception  or  rejection  of  evidence,  or  other  mistake  or  misdirection 
of  the  judge,  or  for  any  gross  misbehavior  of  the  jury  among  themselves, 
or  for  surprise,  or  for  any  other  cause  where  it  shall  appear  to  the  Court 
that  a  new  trial  will  further  the  ends  of  justice.^ 

The  prisoner  must  be  present  in  Court  when  a  motion  for  a  new  trial  is 
made  and  argued. ^°  The  rule  is  generally  argued  therefore  when  the  de- 
fendant is  brought  up  for  judgment.''^ 

1  Per  cur.  in  R.  v.  Waddington,  1  East,  146. 

2  R.  V.  Larkui,  Dears.  C.  C.  365  ;  23  L.  J.  M.  C.  125. 

*  Vaux's  case,  4  Rep.  45a. 

4  R.  V.  Drury  and  others,  3  C.  &  K.  190  ;  18  L.  J.  M.  C.  189. 

5  Per  Mellor,  J.,  in  R.  v.  Bradlaugh  and  Besant,  2  Q.  B.  D.  574  ;  46  L.  J,  M.  C. 
286. 

6  Ex  parte  Newton,  4  E.  &.  B.  869  ;  Re  Pigott,  11  Cox,  C.  C.  311. 

7  11  &  12  Vict.  c.  78,  s.  5. 

8  R.  V.  Holt,  5  T.  R.  436 ;  R.  v.  Newman,  1  E.  &  B.  270  ;  22  L.  J.  Q.  B.  156  ; 
Dears.  C.  C.  85;  17  Jur.  617  ;  3  C.  &  K,  252. 

9  R.  V.  Wliitehouse  and  Tench,  Dears.  C.  C.  1. 

1"  R.  V.  Spragg  and  another,  2  Burr,  929  ;  R.  v.  Caudwell,  2  Den.  C.  C.  372  n. 
u  R.  V.  Hetherington,  5  Jur.  529. 

505 


*  588  PRACTICE   AND   EVIDENCE. 

Where  the  verdict  is  on  the  face  of  it  imperfect,  so  that  judgment  cannot 
be  given  upon  it,  the  Court  will  award  a  venire  de  novo,  instead  of  granting 
a  new  trial,  the  error  appearing  on  the  face  of  the  record.  In  such  a  case 
the  first  trial  is  a  mistrial  and  is  treated  as  a  nullity,  and  the  prisoner  does 
not  plead  again. ^  A  venire  de  novo  was  awarded  in  Woodfall's  case,^  it 
being  impossible  to  say  what  the  jury  meant  by  finding  him  "  guilty  of 
publishing  only.^'  ^ 

When  a  motion  for  a  new  trial  is  allowed,  or  a  ■writ  of  venire  facias  de 
novo  awarded,  the  parties  stand  precisely  as  they  did  before  the  first  trial, 
and  the  whole  of  the  facts  are  to  be  reheard. 

Where  a  new  trial  is  ordered  of  an  indictment  removed  into  the  Queen's 
Bench  Division  by  certiorari,  at  the  instance  of  the  defendant,  the  Court 
may,  in  its  discretion,  order  that  the  costs  shall  abide  the  event  of  the  new 
trial* 

*  589  *  Sentence. 

Sentence  is  seldom  passed  directly  the  verdict  of  Guilty  is  given,  espe- 
cially in  the  Queeen's  Bench  Division.  Formerly  the  defendant  was  kept 
in  custody  till  sentenced  ;  but  now,  unless  the  case  be  exceptional,  he  is 
allowed  out  on  the  same  bail  as  before.  In  the  interval,  the  defendant 
frequently  files  affidavits  in  mitigation  of  punishment,  which  the  prosecutor 
may  answer.  Such  affidavits  may  show  that  the  defendant  reasonably  and 
bond  fide  believed  in  the  truth  of  the  charges  made  in  the  libel,  but  not 
that  the  libel  is  in  fact  true.^  Or  they  may  contain  general  evidence  of 
good  character.  That  the  defendant  voluntarily  stopped  the  sale  of  the 
book  complained  of,  as  soon  as  proceedings  were  commenced,®  or  any  other 
circumstance  showing  provocation  by  the  prosecutor,  or  an  absence  of  mal- 
ice in  the  defendant,  may  be  set  out  on  affidavit.  But  the  defendant 
should  be  careful  not  to  attack  the  character  of  the  prosecutor,  or  his  wit- 
nesses, or  impugn  the  justice  of  the  verdict,  lest  he  thereby  aggravate  his 
original  offence. 

If,  in  the  interval  since  the  verdict,  the  defendant  has  republished  the 
libel,  or  continued  its  sale,  or  been  guilty  of  other  misconduct,  the  prose- 
cutor may  file  affidavits  in  aggravation  of  punishment.''     The  judge  in 

1  Per  Abbott,  C.  J.,  in  R.  v.  Fowler  and  Sexton,  4  B.  &  Aid.  273,  276. 

2  5  Burr.  2661. 

3  And  see  Campbell  and  another  v.  The  Queen,  11  Q.  B.  799  ;  17  L.  J.  M.  C. 
89. 

*  R.  V.  Whitehouse  and  Tench,  Dears.  C.  C.  1. 

8  R.  V.  Burdett,  4  B.  &  Aid.  314  ;  R.  v.  Halpin,  9  B.  &  C.  65  ;  4  M.  &  R.  8. 
6  R.  V.  Williams,  Lofft.  759. 

1  See  R.  V.  Withers,  3  T.  R.  428.  As  to  the  procedure  when  the  prisoner  is  brought 
up  for  judgment,  see  R.  v.  Bunts,  2  T.  R.  683. 

506 


COSTS.  *  589 

passing  sentence  will  also  consider  Avhether  the  guilt  of  the  defendant  is 
aggravated  or  mitigated  by  any  plea  of  justification  which  he  may  have 
placed  on  the  record,  and  by  the  evidence  given  to  prove  or  to  disprove 
the  same.^ 

Where  judgment  has  been  suffered  by  default,  both  parties  should  state 
their  case  on  affidavit.  If  there  is  any  matter  in  the  prosecutor's  affidavit 
which  the  defendant  could  not  be  expected  to  have  come  prepared  to 
answer,  he  will  be  allowed  an  opportunity  of  answering  it  on  a 
future  day."  *  If  the  prisoner  be  found  guilty  of  publishing  a  *  590 
blasphemous  or  seditious  libel,  all  copies  found  in  his  possession 
may  be  seized  and  destroyed  by  an  order  of  the  Court,  under  60  Geo.  III. 
and  1  Geo.  IV.  c.  8,  ss.  1,  2. 

Costs. 

In  the  case  of  an  indictment  or  information  by  a  private  prosecutor  for 
the  publication  of  a  defamatory  libel,  if  judgment  shall  be  given  for  the 
defendant,  he  shall  be  entitled  to  recover  his  costs  from  the  prosecutor.^ 
Such  costs  must  first  be  taxed  by  the  proper  officer  of  the  Court  before 
wliich  tlie  said  indictment  or  information  is  tried ;  and  his  taxation  cannot 
be  reviewed  by  the  Queen's  Bench  Division.*  In  the  case  of  an  informa- 
tion, the  record  being  in  tlie  Queen's  Bench  Division,  execution  may  issue 
on  taxation  in  the  ordinary  way.^  But  in  the  case  of  an  indictment  not  in 
the  Queen's  Bench  Division,  there  is  no  way  of  issuing  execution  for  such 
costs ;  they  must  be  recovered  therefore  by  an  ordinary  action  at  law.® 

So  if  a  defendant  pleads,  and  fails  to  prove,  a  justification,  the  prose- 
cutor may  recover  from  the  defendant  the  costs  he  has  sustained  by  reason 
of  such  plea,  whatever  be  the  result  of  any  other  issues.'' 

But  this  section  does  not  apply  to  Crown  prosecutions,  or  to  any  pro- 
ceedings for  blasphemous,  obscene,  or  .seditious  libels.  And  there  is  no 
provision  enabling  a  prosecutor  to  recover  the  general  costs  of  the  prosecu- 
tion. Sometimes,'  however,  if  a  fine  be  imposed  on  the  defendant  as  part 
of  his  sentence,  the  prosecutor  may,  by  memorializing  the  Treasury,  obtain 
a  portion  of  the  fine  towards  the  payment  of  his  costs. 

1  6  &  7  Vict.  c.  96,  s.  6. 

2  R.  V.  Archer,  2  T.  R.  203  n.  ;  R.  v.  Wilson,  4  T.  R.  487.  As  to  the  sentence 
that  may  be  passed  in  the  case  of  a  defamatory  libel  at  common  law,  see  ante,  p.  378  ; 
luider  the  various  statutes,  p.  379  ;  in  the  case  of  a  blasphemous  libel,  p.  394 ;  an 
obscene  libel,  p.  404  ;  a  seditious  libel,  p.  412. 

3  6  &  7  Vict.  c.  96,  s.  8. 

*  R.  V.  Newhouse,  1  L.  &  M.  129  ;  22  L.  J.  Q.  B.  127. 

8  R.  V.  Latimer,  15  Q.  B.  1077  ;  20  L.  J.  Q.  B.  129  ;  15  Jur.  314. 

6  Richardson  v.  Willis,  L.  R.  8  Ex.  69  ;  42  L.  J.  Ex.  15,  68  ;  27  L.  T.  828  ;  12 
Cox,  C.  C.  298,  351. 

7  6  &  7  Vict.  c.  69,  s.  8. 

507 


*  590  PEACTICE   AjS^D   EVIDENCE. 

Where  an  indictment  is  removed  into  the  Queen's  Bench  Division  by  cer- 
tiorari, the  party  applying  for  the  writ  (not  being  the  Attorney-General) 
must  give  security  for»all  subsequent  costs. 

Where  a  municipal  corporation  have  directed  a  prosecution  for  a 

*  591  libel  on  one  of  tlieir  officers,  the  costs  cannot  be  paid  out  *  of  any 

borough  fund.'  Where  the  directors  of  a  company  have  instituted 
a  prosecution  for  libel,  the  costs  should  not  be  paid  out  of  the  assets  of  the 
company,  though  the  directors  will  not,  as  a  rule,  be  ordered  to  repay  any 
costs  already  paid.*^ 


PART  II. 

PRACTICE   AND   EVIDENCE    IN    PROCEEDINGS    BY  WAY   OF   CRIM- 
INAL  INFORMATION. 

Motion  for  the  Rule. 

The  Cleric  of  the  Crown  may  not  file  any  information  without  express 
order  of  the  Queen's  Bench  Division  granted  in  open  Court.^  Counsel 
must  move  the  Court  upon  proper  affidavits  for  a  rule  nisi  calling  upon  the 
defendant  to  show  cause  why  an  information  should  not  be  granted.  The 
prosecutor  must  consent  to  waive  his  civil  remedy  by  action,  and  must  sub- 
mit himself  to  the  Court ;  and  must  be  prepared  to  go  through  Avith  the 
criminal  proceedings  to  conviction.  The  affidavits  on  which  the  application 
is  based  should  be  carefully  drawn  up ;  as  no  second  application  may  be 
made  on  amended  or  additional  affidavits.'*  They  should  in  the  first  place 
prove  the  publication  by  the  defendant.  ]\Iere  primd  facie  evidence  of 
this  will  not  be  sufficient.^  There  must  be  before  the  Court  legal  evidence 
sufficient  to  justify  a  grand  jury  in  returning  a  true  bill  for  the  same 
offence.  Thus  in  E.  v.  Stanger,^  the  affidavits  merely  showed  that  the 
annexed  copy  of  the  Neivcastle  Daily  Chronicle,  the  newspaper  containing 
the  libel,  had  been  purchased  from  a  salesman  in  the  office  of  that  paper, 

and  that  in  a  footnote  at  the  end  of  that  copy  the  defendant  was 
*  592    stated  *  to  be  the  printer  and  publisher  of  the  newspaper,  and  the 

relator  believed  him  so  to  be.    Held  that  this  was  no  legal  evidence 

1  R.  V.  Mayor,  &c.,  of  Liverpool,  41  L.  .T.  Q.  B.  175  ;  20  W.  R.  389  ;  26  L.  T.  101. 

2  Pickering  v.  Stephenson,  L.  R.  14  Eq.  322  ;  41  L.  J.  Ch.  493  ;  20  W.  R.  654  ; 
26  L.  T.  608. 

8  4  &  5  Wm.  &  Mary,  c.  18,  s.  1.  *  R.  v.  Franceys,  2  A.  &  E.  49. 

6  Pt.  V.  Baldwin,  8  A.  &  E.  168  ;  R.  v.  Willett,  6  T.  R.  294. 
6  L.  R.  6  Q.  B.  352  ;  40  L.  J.  Q.  B.  96  ;  19  W.  R.  640  ;  24  L.  T.  266. 
508 


MOTION  FOR  THE   RULE.  *  592 

of  publication,  and  the  rule  was  discharged.  If  the  defendant  keeps  an 
office  or  shop  at  which  copies  of  the  paper  can  be  purchased,  then  an  affida- 
vit by  a  person  who  purchased  a  copy  of  the  libel  al  such  office  or  shop 
will  be  the  best  evidence  of  a  publication  by  the  defendant,  and  also  that 
most  easily  obtainable.  That  the  purchase  was  made  expressly  for  the 
purpose  of  enabling  sucli  affidavit  to  be  sworn  is  no  objection,  ^ 

It  is  a  doubtful  point  whether  the  omission  of  such  strict  proof  of  pub- 
lication can  subsequently  be  supplied  by  the  admissions,  if  any,  in  the 
defendant's  affidavits  filed  to  show  cause  against  the  rule.  The  Courts  have 
generally  refused  to  look  at  defendant's  affidavits  to  supply  a  defect  in 
those  of  the  prosecutor.'^  For  the  rule  is  that  the  prosecutor  can  at  the 
argument  refer  to  no  document  which  does  not  appear  on  the  face  of  the 
rule  itself  to  have  been  read  at  the  first  application.^  But  Lord  Kenyon, 
in  R.  V.  Mein,*  and  Blackburn,  J.,  in  R.  v.  Stanger,®  expressed  an  opinion 
that  the  Court  might  look  at  any  evidence  lawfully  before  them  for  any 
purpose  they  pleased. 

The  prosecutor  must  also  swear  to  his  innocence  in  all  particulars  of  the 
charge  contained  in  the  libel.®  For  although  at  the  trial  of  the  informa- 
tion when  granted  truth  will  be  no  defence,  except  under  Lord  Campbell's 
Act,  still  it  is  "  sufficient  cause  to  prevent  the  interposition  of  the  Court  in 
this  extraordinary  manner ; "  the  prosecutor  must  proceed  by  way  of  indict- 
ment in  the  ordinary  course.'' 

If  there  is  no  specific  charge  in  the  libel,  no  such  affidavit  is  necessary,^ 
and  it  has  also  been  dispensed  with  in  other  special  circumstances.  But  as 
a  rule  there  must  be  a  specific  denial  on  oath  of  the  particular  charges,  even 
where  it  is  a  duke  that  is  aspersed.^  If  a  general  charge  be  made 
and  a  specific  instance  alleged,  the  affidavit  must  expressly  *  nega-  *  593 
tive  not  only  the  general  charge,  but  also  the  specific  instance. ^° 

The  affidavits  should  be  sworn  with  no  heading  or  title.  The  applica- 
tion must  be  made  within  two  terms  after  the  publication,  or  at  all  events 
within  two  terms  after  the  libel  came  to  the  knowledge  of  the  prosecutor. 
The  prosecutor,  too,  must  come  to  the  Court  in  the  first  instance,  and  must 
not  have  attempted  to  obtain  redress  in  other  Avays."  The  affidavits  should 
not  contain  irrelevant  or  improper  matter;  if  the  prosecutor  abuses  the 

1  Duke  of  Brunswick  v.  Harmer,  14  Q.  B.  189;  19  L.  J.  %.  B.  20  ;  14  Jur.  110; 
3  C.  &  K.  10. 

'^  R.  V.  Baldwin,  8  A.  &  E.  169. 

8  R.  V.  Woolmer  and  another,  12  A.  &  E.  422.  '♦ST.  R.  597. 

6  L.  R.  6  Q.  B.  355  ;  40  L.  J.  Q.  B.  96  ;  19  W.  R.  640  ;  24  L.  T.  266. 

6  R.  V.  Webster,  3  T.  R.  388,  7  R.  v.  Bickerton,  1  Stiu.  498. 

8  R.  V.  Williams,  5  B.  &  Aid.  595. 

9  R.  V.  Haswell  &  Bate,  1  Dougl.  387. 
W  R.  V.  Aunger,  12  Cox,  C.  C.  407. 

"  R.  V.  Marshall,  4  E.  &  B.  475,  ante,  p.  382. 

509 


*  593  PRACTICE  AND   EVIDENCE. 

alleged  libeller,  or  shows  an  animus  against  liim,  the  Court  will  very  prob- 
ably reject  the  application.-^ 

The  rule  nisi,  if  granted,  should  be  drawn  up  "  Upon  reading  "  the  al- 
leged libel  and  the  affidavits  and  all  other  documents  to  which  it  is  desired 
to  refer  on  the  argument  of  the  rule.  It  should  be  personally  served  on 
the  defendant. 

Argument  of  the  Rule. 

The  defendant  now  shows  cause.  He  generally  files  affidavits  in  reply. 
It  is  open  to  him  to  maintain  that  the  libel  is  true.^ 

He  may  also,  it  seems,  contend  that  the  libel  complained  of  did  not  ap- 
ply to  the  relator.  In  a  recent  case  the  libel  did  not  name  the  person 
alluded  to ;  but  described  him  "  as  a  man  of  high  descent,  who  has  been 
regarded  as  a  man  not  only  of  refined  tastes  and  studious  habits  but  as  an 
artist  of  somewhat  more  than  ordinary  ability."  The  relator  swore  that  he 
believed  that  the  libel  was  intended  to  refer  to  himself.  The  Duke  of 
Sutherland  and  others  of  his  friends  considered  that  it  would  be  generally 
understood  as  applying  to  him ;  and  a  rule  was  granted.  But  upon  the 
argument  of  the  rule,  the  publisher  and  the  author  of  the  libel  both  swore 
positively  that  the  relator  was  not  the  person  referred  to  and  that  they  were 
not  in  fact  aware  that  he  was  eitlier  a  man  of  refined  tastes  and  studious 
habits,  or  an  artist  of  somewhat  more  than  ordinary  ability.  And 
*594  the  rule  was  therefore  discharged.^  *This  decision  is  perhaps  to 
be  regretted ;  as  it  opens  a  door  by  which  a  libeller  may  escape 
punishment,  provided  he  is  careful  not  to  expressly  name  his  victim  in  the 
first  place,  and  not  too  scrupulous  to  swear  a  falsehood  afterwards.  The 
writer  of  a  libel  may  richly  deserve  punishment  although  it  may  not  be 
clear  to  whom  he  intended  the  libel  to  apply ;  and  the  Court  in  granting  a 
criminal  information  regards  the  interests  of  public  morality  and  order 
rather  than  those  of  the  individual  prosecutor. 

If  the  rule  be  discharged  on  the  merits  the  Court  generally  gives  the  de- 
fendant his  costs.  And  no  second  application  may  be  made  to  the  Court, 
even  upon  additional  affidavits ;  *  except  in  very  peculiar  circumstances,  as 
where  the  only  person  who  had  made  an  affidavit  on  behalf  of  the  defend- 
ant on  the  argument  of  the  first  rule  had  since  been  indicted  or  convicted 
of  perjury  in  respect  of  such  affidavit.^  But  though  the  prosecutor  cannot 
apply  a  second  time  for  a  criminal  information,  he  can  still  prefer  an  indict- 
ment in  the  ordinary  way.® 

1  R.  V.  Burn,  7  A.  &  E.  190. 

2  R.  V.  Eve  and  Pailby,  5  A.  &  E.  780  ;  1  N.  &  P.  229.     See  ante,  p.  592. 
8  R.  V.  Barnard,  Times  for  Dec.  I7th,  1878,  and  Jan.  13th,  1879'. 

*  R.  V.  Smithson,  4  B.  &  Ad.  862. 

6  R.  V.  Eve  and  Pari  by,  5  A.  &  E.  780  ;  1  N.  &  P.  229. 

6  Per  Lord  Denman  in  R.  v.  Cockshaw,  2  N.  &  Man.  378. 

610 


TKIAL  AND   COSTS.  *  594 

Compromise. 

Frequently,  however,  the  defendant  files  exculpatory  affidavits  apologiz- 
ing to  the  prosecutor,  withdrawing  all  imputations  upon  him,  and  entreat- 
ing the  mercy  of  the  Court.  When  this  happens,  the  prosecutor  is  generally 
quite  satisfied  ;  he  has  obtained  all  he  desired  :  and  by  no  means  courts  the 
expense  and  notoriety  of  a  prolonged  criminal  trial.  But  the  Court  is  by 
no  means  disposed  on  that  account  to  allow  the  proceedings  to  drop,  even 
at  the  request  of  the  prosecutor ;  and  in  more  than  one  recent  case  the 
Queen's  Bench  Division  have  compelled  a  reluctant  prosecutor  to  take  a 
rule  in  the  interest  of  the  public.  Having  invoked  the  aid  of  the  criminal 
law,  it  is  his  duty  not  to  abandon  the  proceedings  merely  because  his  own 
private  purpose  is  attainod.^ 

*Trial  and  Costs.  *  595 

If  the  rule  be  made  absolute,  the  prosecutor  must  enter  into  a  recogni- 
zance to  effectually  prosecute  the  information  and  abide  by  the  order  of  the 
Court,  The  amount  of  the  recognizance  is  fixed  by  statute  ^  at  20/.,  and 
this  amount  cannot  be  increased.^ 

The  information  must  set  out  the  libel,  &c.,  with  all  the  certainty  and 
precision  of  an  indictment.'*  As  soon  as  it  is  filed  a  srihpoena  issues  of 
which  a  copy  must  be  served  on  the  defendant.  The  defendant  must  ap- 
pear thereto  within  four  days.  If  he  does  not  he  may  be  attached  under 
a  judge's  warrant.^  After  appearance  the  defendant  has  ten  days  within 
which  to  plead.  His  plea  is  duly  entered  on  the  record  which  is  then 
made  up  and  sent  down  for  trial  to  the  county  in  which  the  libel  was  pub- 
lished, unless  a  trial  at  bar  be  demanded.  The  record  may  be  amended  by 
a  judge  at  chambers  after  plea  and  before  trial.®  The  trial  of  an  informa- 
tion for  libel  in  all  respects  resembles  the  trial  of  an  indictment ;  save  that 
in  ex  officio  informations,  the  counsel  for  the  Crown  (whether  the  Attorney- 
General  himself  or  any  one  appearing  for  him)  has  the  right  to  reply,  al- 
though the  defendant  calls  no  witnesses.'  The  trial  must  take  place  within 
one  year  after  issue  joined ;  and  if  not,  or  if  the  prosecutor  enters  a  nolle 
prosequi,  or  if,  at  the  trial,  the  verdict  pass  for  the  defendant,  the  defendant 
will  be  entitled  to  recover  his  costs  from  the  prosecutor.  The  judge  at  the 
trial  has  no  longer  any  power  to  deprive  a  successful  defendant  of  his  costs 
by  certifying  upon  the  record  that  there  was  a  reasonable  cause  for  exhibit- 

1  See  R.  V.  "The  World,"  13  Cox,  C.  C.  305. 

2  4  &  5  Wm.  and  M.  c.  18,  s.  1.  8  R.  i;.  Brooke,  2  T.  R.  190. 
*  See  Precedents  Nos.  57,  60,  post,  pp.  649,  651. 

6  48  Geo.  III.,  c.  58,  s.  1. 

6  R.  V.  Wilkes  (1764-1770),  4  Buit.  2527  ;  2  Wils.  151. 

T  R.  V.  Home,  20  How.  St.  Tr.  660  ;  11  St.  Tr.  264  ;  Cowp.  672. 

611 


*595  PRACTICE  AND  EVIDENCB. 

ing  such  information,  except  in  an  ex  officio  information.'^  The  master  of  the 
Crown  office  taxes  the  costs  under  a  side-bar  rule ;  and  he  may  allow  costs 

incurred  by  the  defendant  previously  to  the  filing  of  the  information.^ 
*  59G    *  On  such  taxation  execution  issues.     There  is  no  power,  however, 

to  condemn  the  defendant  to  pay  the  costs  of  the  prosecution,  if  he 
be  convicted  or  plead  guilty,  unless  indeed  he  files  a  special  plea  of  justi- 
fication under  Lord  Campbell's  Act,  in  which  case  he  will  have  to  pay  the 
costs  incurred  by  reason  of  that  plea.' 

1  4  &  5  Wm.  and  Mary,  c.  18,  s.  1,  and  6  &  7  Vict.  c.  96,  s.  8  ;  as  explained  in  K. 
V.  Latimer,  15  Q.  B.  1077  ;  20  L.  J.  Q.  B.  129  ;  15  Jur.  314. 

2  R.  V.  Steel  and  others,  1  Q.  B.  D.  482  ;  45  L.  J.  Q.  B.  391  ;  24  W.  R.  638  ;  34 
L.  T.  283  ;  13  Cox,  C.  C.  159 ;  (C.  A.)  2  Q.  B.  D.  37  ;  46  L.  J.  M.  C.  1  ;  25  W.  R. 
34  ;  35  L.  T.  534. 

3  See  6  &  7  Vict.  c.  96,  s,  8,  post,  p.  674,  Appendix  C. 

512 


*  APPENDICES.  *597 


APPENDIX    A. 
PRECEDENTS    OF    PLEADINGS. 

CONTENTS. 
I.  Pleadings  in  Actions  for  Libel. 

Libel  contained  in  a  character  given  to  a  domestic  servant  by  her  late  employer. 

1.  Statement  of  Claim. 

2.  Statement  of  Defence,     (Justification  and  Privilege. ) 

Libel  on  architects  (partners)  in  the  way  of  their  profession. 
S.  Statement  of  Claim. 

Libel  on  the  editor  of  a  newspaper. 

4.  Statement  of  Claim.     (Injunction.) 

5.  Statement  of  Defence.     (Justification  and  £ond  Fide  Comment.) 

6.  Reply  and  Demurrer. 

Libel  contained  in  a  Memorial  to  the  Home  Secretary, 

7.  Statement  of  Claim. 

8.  Summons  for  Particulars. 

9.  Order  for  Particulars. 

10.  Particiilars. 

11.  Statement  of  Defence.     (Privilege.) 

12.  Reply. 

13.  Rejoinder. 

Libel  contained  in  a  placard. 

14.  Statement  of  Claim. 

15.  Statement  of  Defence.     (Privilege.) 

Action  against  the  Manager  of  a  Bank  for  showing  to  a  customer  an  anonymoics  libellous 

letter. 

16.  Statement  of  Claim.     (Innuendoes.) 

17.  Statement  of  Defence.     (Justification  and  Privilege.) 

*  Action  for  publishing  a  Ubelloiis  novel.  *  5  9  8 

18.  Statement  of  Defence. 

83  513 


*  598  APPEiTOIX  A. 

Action  against  a  newspaper  proprietor. 

19.  Statement  of  Defence,  on  the  ground  that  the  alleged  libel  is  fair  and  bond  fide 

^  comment  on  a  matter  of  public  interest. 

20.  Statement  of  Defence,  on  the  ground  that  the  alleged  libel  is  a  fair  and  impartial 

report  of  a  judicial  proceeding. 

21.  Interrogatories  administered  to  a  newspaper  proprietor, 

22.  Interrogatories  administered  to  the  editor  of  a  newspaper. 

23.  Notice  of  intention  to  give  evidence  of  an  apology  in  mitigation  of  damages  under 

Lord  Campbell's  Act. 

II.  Pleadings  in  Actions  for  Slander. 

Words  imputing  a  crime. 

24.  Statement  of  Claim.     (Innuendo.) 

25.  Statement  of  Defence.     (Charge  made  in  Joke.) 

26.  Statement  of  Defence.     (Justification. ) 

Words  imputing  a  contagums  disorder. 

27.  Statement  of  Claim. 

28.  Particulai-s. 

29.  Statement  of  Defence. 

Words  spoken  in  a  foreign  language. 

30.  Statement  of  Claim.     (Translation.) 

Words  spoken  of  a  medical  man. 

31.  Statement  of  Claim.     (Innuendoes.)  , 

Slander  of  a  clerg7jman. 

32.  Statement  of  Claim. 

Slander  of  a  parish  clerk. 

33.  Statement  of  Claim. 

34.  Statement  of  Defence.     (Apology  and  Payment  into  Court.) 

35.  Reply. 

Slander  of  a  trader  in  the  way  of  his  trade. 

36.  Statement  of  Claim. 

37.  Statement  of  Defence.     (Justification. ) 

Slander  of  a  builder  in  the  tvay  of  his  trade. 

38.  Statement  of  Claim. 

39.  Statement  of  Defence.     (Justification  and  Privilege. ) 

*  599    *  III.  Pleadings  in  Actions  for  Slander  of  Title. 

Pleadings  in  the  case  of  "The  'Westem  Counties  Manure  Co.  v.  The  Lawes  Chemical 

Manure  Co." 

40.  Declaration. 

41.  Pleas. 

42.  Replication  and  Demurrer. 

614 


CO^'TEXTS.  *  599 

43.  Joinder  in  Demurrer. 

44.  Plaintiffs'  points  upon  the  argument  of  the  Demurrer. 

45.  Interrogatories. 

Slander  of  title  to  goods. 

46.  Statement  of  Claim. 

47.  Statement  of  Defence. 

Libel  in  the  nature  of  slander  of  title. 

48.  Statement  of  Claim. 

49.  Statement  of  Defence. 

IV.    Forms  of  Pleadings,  Notices,  etc.,  in  the  County 

Court. 

50.  Statement  of  the  Plaintiffs  Cause  of  Action  in  a  remitted  action. 

51.  Notice  of  Trial  of  such  remitted  Action. 

52.  Affidavit  for  leave  to  administer  Interrogatories. 

53.  Notice  of  Set-ofiF  and  Counterclaim. 

54.  Notice  of  Special  Defence, 

55.  Notice  under  Lord  Campbell's  Act,  s.  1. 

56.  Notice  under  Lord  Campbell's  Act,  s.  2. 

v.  Precedents  of  Criminal  Pleadings. 

57.  Information  for  a  libel  on  a  private  individual.     (Pi.  v.  Newman.)  , 

58.  Pleas  'thereto. 

59.  Replication. 

60.  Ex  Officio  Information  for  a  Seditious  LibeL     (Pu  v.  Home.) 

61.  Indictment  for  a  Blasphemous  LibeL 

62.  Indictment  for  an  Obscene  Libel. 

63.  Indictment  for  Seditious  "Words. 

64.  Indictment  for  Slanderous  Words  spoken  to  a  Magistrate  whilst  in  the  execution 

of  his  duty. 

65.  Indictment  for  a  libel  on  a  private  individual  at  common  law. 

66.  Indictment  under  s.  4  of  Lord  Campbell's  Act. 

67.  Indictment  under  s.  5  of  Lord  Campbell's  Act. 

68.  Demurrer  to  an  Indictment  or  Information. 

69.  Joinder  in  Demurrer. 

70.  Pleas  to  ah  Indictment. 

71.  Replication  to  the  above  Pleas. 

72.  Demurrer  to  a  Plea. 

73.  Joinder  in  Demurrer. 

615 


*600   *I.  PRECEDENTS  OF  PLEADINGS  IN  ACTIONS 

OF  LIBEL. 

No.  1. 

Libel  contained  in  a  Character  given  to  a  Domestic  Servant  by  her  late 

Employer. 

1880.— J.  — No.  1973. 

In  the  High  Court  of  Justice, 
Queen's  Bench  Division. 

Writ  issued  Nov.  3rd,  1880. 
Between  Sarah  Jones     .....     Plaintiff. 

and 
Henry  Roherts 
and  Alice  his  wife     .         .         .     Defendants. 

Statement  of  Claim, 

Delivered  on  the  16th  day  of  Nov.,  1880,  by  M.  &  N.  of ,  in  the 

City  of  London,  agents  for ,  of  Cheltenham,  in  the  County  of  Glouces- 
ter, solicitor  for  the  above-named  plaintiff. 

1.  The  plaintiff  is  a  housemaid,  formerly  in  the  service  of  the  defendants, 
and  now  residing  at . 

2.  The  male  defendant  is  a  gentleman,  residing  at Hall,  near  Eve- 
sham, in  the  county  of  Worcester ;  and  the  female  defendant  is  his  wife. 

3.  On  the  15th  day  of  September,  1880,  the  female  defendant  falsely 
and  maliciously  wrote  and  published  of  the  plaintiff  the  words  following, 
that  is  to  say  :  —  "  While  she  (meaning  thereby  the  plaintiff)  was  with  us, 
she  stole  a  quantity  of  our  house-linen,  and  pawned  it  in  the  High  Street."  * 

4.  [Add  a  paragraph  setting  out  special  damage,  if  any  exists.] 

And  the  plaintiff  claims  £200  damages,  and  proposes  that  this  action  be 
tried  in  the  county  of  Gloucester. 

*  N.B.  —  No  innuendo  is  necessary. 

616 


PLEADINGS   IN  LIBEL.  *  601 

*  No.  2.  *  601 

Statement  of  Defence. 

1.  The  defendants  admit  that  the  defendant  Alice  wrote  and  published 
the  words  set  out  in  paragi-aph  3  of  the  Statement  of  Claim,  but  deny  that 
she  did  so  either  falsely  or  maliciously. 

2.  The  said  words  are  true  in  substance  and  in  fact.  WhOe  the  plaintiff 
was  in  the  service  of  the  defendants,  to  wit,  on  the  18th  day  of  March, 
1880,  she  stole  two  pair  of  sheets  and  one  counterpane,  of  the  goods  and 
chattels  of  the  defendant  Henry,  and  pawned  them  at  the  shop  of  John 

,  'No. ,  High  Street,  Evesham.     Wherefore  the  defendants,  as 

they  lawfully  might,  discharged  the  plaintiff  from  their  service. 

•  3.  Subsequently  the  plaintiff  was  desirous  of  entering  into  the  service  of 

Mrs.  M.,  of ,  in  the  county  of  Warwick ;  and  the  said  Mrs.  M.  wrote 

a  letter  to  the  defendant  Alice  inquiring  as  to  the  plaintiff's  character,  and 
asking  especially  why  she  left  the  defendants'  service. 

4.  Thereupon  it  became  and  was  the  duty  of*  the  defendant  Alice  to 
write  to  the  said  Mrs.  M.,  telling  her  what  she  knew  as  to  the  plaintiff's 
character,  and  stating  the  reason  of  her  dismissal.  In  accordance  with 
such  duty  the  defendant  Alice  wrote  to  Mrs.  M.  a  letter  containing  the 
said  words.  Such  words  were  simply  an  answer  to  Mrs.  M.'s  inquiries, 
and  were  written  under  a  sense  of  duty  and  without  malice,  and  in  the 
bond  fide  belief  that  the  charge  therein  made  was  true  and  not  otherwise. 
Wherefore  the  defendants  say  that  the  said  letter  is  privileged  by  reason 
of  the  occasion  on  which  it  was  written. 

Eeplt. 

The  plaintiff  joins  issue  with  the  defendants  on  their  statement  of  de- 
fence. 


No.  3. 

Libel  on  Architects  (partners)  in  the  way  of  their  profession. 

Botterill  and  another  v.  Whytehead,  41  L.  T.  588,  ante,  p.  219. 

Statement  of  Claim. 

1.  The  plaintiffs  are  brothers  carrying  on  the  profession  and  business  of 
architects  in  partnership  at . 

*  2.  At  or  about  the  time  of  the  writing  and  publishing  of  the    *  602 
libels  hereinafter  complained  of,  the  plaintiffs  were,  as  the  defend- 

517 


*  602  APPENDIX  A. 

ant  well  knew,  employed  hj  a  committee  formed  for  the  restoration  of  a 
church  at  South  Skirlaugh,  near  Hull,  to  superintend  and  carry  out  the 
restoration  of  the  said  church,  and  were  appointed  by  the  said  committee 
as  architects  for  that  purpose. 

3.  On  the  8th  April,  1878,  after  the  appointment  of  the  plaintiffs  as 
such  architects  as  aforesaid,  the  defendant  by  a  letter  written  and  sent  to 
Mr.  Bethel,  a  member  of  the  said  committee,  falsely  and  maliciously  wrote 
and  published  of  the  plaintiffs,  in  relation  to  their  profession  and  business  of 
architects,  and  the  carrying  on  and  conducting  thereof  by  them,  the  words 
following,  that  is  to  say  :  — 

"  I  see  in  the  Hull  News  of  Saturday  that  the  restoration  of  Skirlaugli 
Church  has  fallen  into  the  hands  of  an  architect  who  is  a  Wesleyan,  and 
can  show  no  experience  in  church  work.  Can  you  not  do  something  to 
avert  the  irreparable  loss  which  must  be  caused  if  any  of  the  masonry  of 
this  ancient  gem  of  art  be  ignorantly  tampered  with  1  Your  great  influence 
would  surely  have  much  weight  in  the  matter." 

Meaning  thereby  that  the  plaintiffs  were  incompetent  to  superintend 
and  carry  out  the  restoration  of  the  said  church,  and  that,  if  the  restora- 
tion were  left  in  the  hands  of  the  plaintiffs,  the  old  masonry  of  the  church 
would  be  ignorantly  tampered  with,  and  would  not  be  treated  with  proper 
spirit  and  feeling,  and  would  suffer  from  their  incompetence  and  want  of 
skill. 

4.  On  or  about  the  16th  April,  1878,  and  after  the  appointment  of  the 
plaintiffs  as  such  architects  as  aforesaid,  the  defendant,  by  a  letter  addressed 
to  Mr.  Barnes,  the  incumbent  of  Skirlaugh  Church,  falsely  and  maliciously 
wrote  and  published  of  the  plaintiffs,  in  relation  to  their  profession  and 
business  of  architects,  and  the  carrying  thereon  and  conducting  thereof  by 
them,  the  words  following,  that  is  to  say  :  — 

"  I  am  annoyed  to  see  that  you  and  your  committee  have  engaged  Messrs. 
B.  as  architects  for  the  restoration  of  your  church.     Are   you  aware  that 
they  are  "Wesleyans,  and  cannot  have  any  religious  acquaintance  with  such 
work  ? " 

*  603         Meaning  thereby  that  the  plaintiffs  were  incompetent  to  *  under- 

take and  superintend  the  restoration  of  the  said  church,  and  were 
unable  to  carry  it  out  with  adequate  spirit  and  feeling. 

5.  By  reason  of  the  premises  and  the  publication  of  the  said  libels,  the 
plaintiffs  have  been  and  are  injured  in  their  said  profession  and  business, 
and  have  suffered  in  their  credit  and  reputation  as  architects. 

518 


PLEADINGS   IN   LIBEL.  *  603 

N"o.  4. 
Libel  on  the  Editor  of  a  Newspaper. 

Leyman  v.  Latimer  and  others,  3  Ex.  D.  15,  352;  47  L.  J.  Ex.  470;  25 
W.  R.  751 ;  26  W.  R.  305 ;  37  L.  T.  360,  819. 

Statement  of  Claim. 

1.  The  plaintiff  resides  at  Dartmouth,  in  the  County  of  Devon,  and  is 
the  proprietor  and  editor  of  a  newspaper  published  there,  and  called  the 
Dartmouth  Advertiser. 

2.  The  defendants  are,  and  at  the  time  of  the  publications  hereinafter 
mentioned  were,  the  proprietors,  printers,  and  publishers  of  a  newspaper 
called  the  Western  Daily  Mercury,  the  head  publishing  office  of  which  is 
at  Plymouth,  in  the  said  county  of  Devon,  and  which  also  has  branch 
publishing  offices  in  Devonport,  in  the  said  county,  and  in  the  city  of 
.Exeter. 

3.  The  defendants,  or  some  or  one  of  them,  also  edit  and  write  for  the 
said  newspaper. 

4.  The  defendants,  in  their  said  paper  called  the  Western  Daily  Mercury, 
dated  on  the  24th  day  of  April,  1876,  wrote,  printed,  and  published  certain 
words,  which  words  (omitting  for  the  sake  of  brevity  certain  words  appear- 
ing in  the  original  at  the  places  marked  with  asterisks)  were  as  follows  :  — 

"  The  narrative  must  be  deferred  till  next  week.  *  *  *  The  history  of 
the  Advertiser,  too,  must  stand  over.  *  *  *  its  present  editor  is  a  convicted 
felon.  The  case  in  which  a  certain  John  Leyman,  printer,  was  sentenced 
to  twelve  months'  hard  labor  for  stealing  feathers  —  a  case  of  which  Mr. 
Foster  may  have  heard,  since  he  is  so  familiar  with  the  chief  actor  —  wiU 
be  reproduced." 

5.  The  defendants,  in  their  said  newspaper  called  the  *  Western  *  604 
Daily  Mercury,  dated  the   1st  day  of  May,  1876,  wrote,  printed, 

and  published  certain  words,  which  words  (omitting  for  the  sake  of  brevity 
certain  words  not  personally  relating  to  the  plaintiff",  and  appearing  in  the 
original  at  the  places  marked  with  asterisks)  were  as  follows  :  — 

"There  still  remain  to  be  recorded  Mr,  Foster's  controversies  with  the 
Town  Council  of  Dartmouth.  *  *  *  and  the  facts  regarding  his  newspaper 
(meaning  the  plaintiff's  said  newspaper,  the  Dartmouth  Advertiser),  and  its 
bankrupt  and  felon  editors  (meaning  the  plaintiff).  The  narrative  must  be 
deferred  till  next  week.     It  is  worth  the  telling." 

6.  The  words  set  out  in  paragraphs  4  and  5  were  written,  printed,  and 
published  by  the  defendants  of  and  concerning  the  plaintiff,  and  were  so 
written,  printed  and  published  falsely  and  maliciously,  and  with  a  libellous 
and  defamatory  sense  and  meaning. 

619 


*604  APPENDIX  A. 

7.  The  said  words  so  set  forth  in  paragraphs  4  and  5  were  also  so  falsely 
and  maliciously  written,  printed,  and  published  of  and  concerning  the 
plaintiff  in  his  business  and  calling  of  a  printer  and  newspaper  editor,  and 
his  said  occupation  as  proprietor  and  editor  of  the  said  Dartmouth  Advertiser 
newspaper. 

8.  In  consequence  of  the  publications  set  forth  in  the  4th  and  5th  para- 
graphs, the  circulation  of  the  plaintiff's  said  newspaper,  the  Dartmouth 
Advertiser,  has  already  been  greatly  injured,  and  has  much  decreased,  and 
will  be  still  further  injured  and  decreased.  The  plaintiff  has  also  already 
experienced  difficulty  in  getting  supplied  with  news  and  obtaining  persons 
to  be  his  correspondents,  and  will  experience  still  further  difficulty  in  get- 
ting supplied  with  news  and  obtaining  persons  to  correspond  with  him. 
In  particular  one  Mr.  Robt.  D.,  of  Churston  Ferrers,  in  the  county  of 
Devon,  and  one  Mr.  Robt.  H.,  of  Totnes,  also  in  the  county  of  Devon, 
who  both  had  respectively  supplied  the  plaintiff  and  his  said  newspaper 
with  ^ews,  and  acted  as  correspondents  to  the  plaintiff's  said  newspaper, 
in  consequence  of  the  said  publications  refused  and  declined  any  longer  so 
to  act.  The  value  of  the  goodwill  of  the  plaintiff's  said  newspaper  has,  in 
consequence  of  the  matters  hereinbefore  appearing,  become  and  is  greatly 
lessened. 

The  plaintiff  claims  : 
*  605     *  1.  £1000  damages. 

2.  An  injunction  to  restrain  the  defendants  from  similar  publica- 
tions in  future. 

3.  Such  further  or  other  relief  as  the  nature  of  the  case  may  require. 


No.  5. 
Statement  of  Defence. 

1.  The  defendants  do  not  admit  that  the  plaintiff  is  the  proprietor  and 
editor  of  the  Dartmouth  Advertiser  newspaper. 

2.  The  defendants  do  not  admit  the  allegations  in  paragraphs  6,  7,  and 
8  of  the  statement  of  claim. 

3.  The  defendants  deny  that  the  word  "  bankrupt "  in  the  quotation 
from  their  said  newspaper,  in  the  fifth  paragraph  of  the  statement  of  claim 
set  out,  was  intended  to,  or  did,  refer  to  the  plaintiff. 

4.  And  the  defendants  further  say  that  the  plaintiff  has  been  convicted 
of  felony,  and  was  sentenced  to  twelve  months'  hard  labor  for  stealing 
feathers. 

5.  The  words  in  the  4th  and  5th  paragraphs  of  the  statement  of  claim 
complained  of  were,  and  are  part  of  certain  articles  printed  and  published 

620 


PLEADINGS   IN   LIBEL.  *  605 

in  the  defendant's  said  newspaper,  each  of  which  articles  was  and  is  a  fair 
and  bond  fide  comment  upon  the  conduct  of  the  plaintiff  in  his  public  char- 
acter and  as  the  nominal  editor  and  proprietor  of  the  Dartmouth  Advertiser, 
a  public  newspaper,  and  was  printed  and  published  by  the  defendants  as 
and  for  such  comment,  and  without  any  malicious  motive  or  intent  what- 
ever. 


No.  6. 
Reply  and  Demurrer. 

1.  The  plaintiff  joins  issue  upon  the  1st,  2nd,  and  5th  paragraphs  of  the 
defendants'  statement  of  defence. 

2.  As  to  the  3rd  paragraph  of  the  statement  of  defence,  the  plaintiff  ad- 
mits the  allegations  in  such  3rd  paragraph  contained. 

*  3.  As  to  the  4th  paragraph  of  the  said  statement  of  defence,  *  606 
the  plaintiff  (so  that  such  admission  be  not  in  any  way  extended 
or  taken  to  mean  that  he  ever  was,  in  fact,  guilty  of  the  offence  referred  to) 
admits  the  allegation  contained  in  such  4th  paragraph.  But  the  plaintiff 
further  says  that  he  has  never  been  convicted  of  felony  save  on  that  one 
occasion,  which  is  the  occasion  mentioned  in  the  said  4th  paragraph  of  the 
statement  of  defence.  On  that  occasion  he  was  convicted  of  the  supposed 
felony  by  a  Court  duly  having  jurisdiction  in  that  behalf,  the  Court  of 
Quarter  Sessions  for  the  county  of  Cornwall ;  and  the  said  Court,  having 
jurisdiction  as  aforesaid,  in  the  exercise  of  such  jurisdiction,  adjudged  that, 
as  a  punishment  for  the  said  supposed  felony,  the  plaintiff  should  be  im- 
prisoned and  kept  to  hard  labor  for  twelve  calendar  months.  The  said 
conviction  took  place  several  years  ago,  and  the  plaintiff,  as  the  defendants 
well  knew,  duly  endured  the  punishment  to  which  he  was  so  adjudged  as 
aforesaid,  for  the  said  supposed  felony,  and  thereby  became,  and  was,  and 
has  ever  since  been,  and  is,  in  the  same  situation  as  if  a  pardon  under  the 
Great  Seal  had  been  granted  to  him  as  to  the  said  supposed  felony  whereof 
he  was  convicted  as  aforesaid. 

4.  The  plaintiff  demurs  to  the  said  4th  paragraph  of  the  statement  of 
defence,  on  the  ground  that,  while  the  statement  of  defence  admits  the  pub- 
lication of  the  whole  of  the  libels  alleged  in  the  statement  of  claim,  and 
the  said  paragraph  is  pleaded  to  the  whole  of  the  said  libels,  and  a  part  of 
the  libel  charges  that  the  plaintiff  is  a  convicted  felon,  nevertheless  tlie  said 
4th  paragraph  contains  nothing  which  justifies  or  is  otherwise  a  defence  to 
that  portion  of  the  said  libel ;  and  the  plaintiff  also  demurs  upon  other 
grounds  sufficient  in  law  to  sustain  this  demurrer. 

Demurrer  by  the  defendants  to  the  3rd  paragraph  of  the  plaintiff's  reply. 

521 


*607  APPENDIX  A. 

*  607  *  No.  7. 

Libel  contained  in  a  Memorial  to  the  Home  Secretary. 

J.  S.  and  M.  his  wife  v.  G. 

Statement  of  Claim. 

1.  The  plaintiffs  reside  at ,  in  the  County  of  Wilts,  and  the  defend- 
ant at House  in  the  adjoining  parish. 

2.  In  the  month  of , ,  the  night  dress  of  a  child  of  the  plain- 
tiffs accidentally  caught  fire,  and  the  child  was  so  seriously  injured  that  he 
shortly  afterwards  died,  and  upon  an  inquest  being  held  to  inquire  into 
the  cause  of  his  death,  a  verdict  of  accidental  death  was  returned  by  the 
coroner's  jury. 

3.  The  defendant  thereupon  falsely  and  maliciously  wrote  and  published 
of  and  concerning  the  plaintiffs,  and  spoke  and  published  of  and  concerning 
the  plaintiffs  the  words  following,  that  is  to  say  :  "  Mrs.  S."  (meaning  the 
plaintiff  M.)  "was  in  the  habit  of  unmercifully  beating  the  child;  she 
would  kick  it  on  the  floor,  and  would  invite  the  other  children  to  do  the 
same.  The  child  was  fed  upon  unwholesome  and  putrid  food,  jalap  was 
administered  in  its  food  to  induce  diarrhoea,  and  cold  boiled  rhubarb  was 
administered  for  the  same  purpose,"  meaning  thereby  that  the  plaintiffs  had 
nef^lected  to  provide  their  said  child  with  proper  and  wholesome  food  and 
nourishment  as  it  was  their  duty  to  do,  and  had  wilfully  administered  un- 
wholesome food  and  drugs  to  their  said  child. 

4.  The  defendant  also  falsely  and  maliciously  wrote  and  published  of 
and  concerning  the  plaintiffs,  and  spoke  and  published  of  and  concerning 
the  plaintiffs  the  words  following,  that  is  to  say  :  "  The  child  "  (meaning 
the  plaintiffs'  said  child)  "  was  also  tied  by  the  hands  and  feet  and  beaten 
with  a  cane  which  had  a  nail  fastened  in  the  end,  and  this  nail  was  forced 
into  the  body  of  the  child,"  and  "  the  child  was  left  uncared  for  and  with- 
out food  fastened  to  a  bed  in  a  garret  whilst  bleeding  from  chilljlains," 
meaning  thereby  that  the  plaintiffs  had  treated  and  had  been  in  the  habit 
of  treating  their  said  child  with  great  cruelty,  brutality  and  harshness,  and 

leaving  him  without  food  and  seeking  to  compass  his  death. 
*  608  5.  The  defendant  also  falsely  and  maliciously  wrote  and  *  pub- 
lished of  and  concerning  the  plaintiffs,  and  spoke  and  published  of 
and  concerning  the  plaintiffs  the  words  following,  that  is  to  say:  "It 
is  impossible  that  the  injuries  the  child"  (meaning  the  plaintiffs'  said 
child)  "  received,  and  which  caused  its  death,  could  have  been  produced  by 
the  conflagration  of  a  thin  night  dress  (which  was  all  the  child  had  on)," 
meanin*^  thereby  that  the  plaintiffs  had  wilfully  caused  or  contributed  to 
622 


PLEADIXGS   IX  LIBEL.  *  608 

the  injuries  their  said  child  received  and  which  caused  its  death,  and  had 
been  guilty  of  manslaughter  or  worse. 

6.  By  reason  of  the  premises  the  plaintiffs  have  been  greatly  injured  in 
their  credit,  reputation  and  character,  and  have  been  exposed  to  contempt 
and  odium,  and  have  suffered  great  pain  and  anguish  of  mind. 

The  plaintiff's  claim  £5000  damages. 

The  plaintiffs  propose  that  this  action  shall  be  tried  in  the  City  of  the 
County  of  the  City  of  Bristol. 


No.  8. 
Summons  for  Particulars. 
Queen's  Bench  Divisioii. 

S.  and  wife  v.  G. 

Let  the  plaintiffs'  solicitor  or  agent  attend  me,  at  my  chambers  at , 

to-morrow  at  11  of  the  clock  in  the  forenoon,  to  show  cause  why  he  should 
not  deliver  to  the  defendant's  solicitor  or  agent  an  account  in  writing  of 
the  particulars,  showing  when,  where,  and  to  whom  the  alleged  libels  and 
slanders  were  Avritten,  spoken  and  published  ;  and  why,  in  the  meantime,  all 
further  proceedings  should  not  be  stayed  until  the  delivery  thereof. 

Dated  the day  of ,  18 — . 


No.  9. 

Order  on  the  above  Summons. 

Queen's  Bench  Division. 

S.  and  wife  v.  G. 

Upon  hearing  the  solicitors  or  agents  on  both  sides,  I  do  order 
that  the  plaintiffs'  solicitor  or  agent  sliall  deliver  to  the  *  defend-  *  609 
ant's  solicitor -or  agent  an  account  in  writing  of  the  particulars 
showing  when,  where  and  to  whom  the  alleged  libels  and  slanders  were 
written,  spoken  and  published,  and  that  unless  such  particulars  be  deliv- 
ered in  seven  days  all  further  proceedings  in  this  cause  be  stayed  until 
the  delivery  thereof. 

Dated  the  5th  day  of  February,  1878. 

G.  P. 
523 


*  609  APPENDIX  A. 

No.  10. 
Particulars  under  Order  of  5th  February,  1878. 

The  defendant  on  or  about  the  24th,  25th  and  26th  days  of  OctoTber, 
18 — ,  wrote,  and  published  the  libels  complained  of,  to  the  Rev.  F.  S.  F. 

and  J.  G.  Esq.,  at in  the  county  of  Wilts,  to  H.  A.  and  his  wife  at 

in  the  said  county,  to  two  police  constables  for  the  county  of  Wilts 

at aforesaid,  to  H.  F.  at in  the  said  county,  to  G.  M.  G.,  M.  M., 

li.  M.,  and  W.  A.,  all  at and in  the  said  county,  and  on  and 

between  the  24th  and  28th  day  of  October,  18 — ,  the  defendant  wrote  and 
published  the  said  libels  to  divers  other  persons  in  the  several  parishes  of 
[B,  C,  and  D]  in  the  said  county,  whose  names  are  at  present  unknown  to 
the  plaintiffs  and  on  or  about  the  29th  day  of  October,  18 — ,  the  defend- 
ant wrote  and  published  the  said  libels  so  complained  of  to  the  Eight  Hon- 
orable E.  Assheton  Cross  at  the  office  of  the  Secretary  of  State  for  the 
Home  department  in  London. 

The  defendant  uttered  the  slanders  complained  of  upon  and  between  the 
same  dates  at  the  same  places  and  to  the  same  persons  as  are  mentioned 
and  described  in  the  last  preceding  paragraph. 

Dated  7th  day  of  February,  18 — . 


No.  11. 

Statement  of  Defence, 

1.  The  defendant  as  to  paragraph  1  of  the  statement  of  claim,  says 
*  610    that  he  and  the  plaintiffs  reside  in  the  same  parish  and  not  *  in 
adjoining  parishes.     Save  as  aforesaid  the  defendant  admits  the  al- 
legations contained  in  paragraph  1  of  the  statement  of  claim. 

2.  The  defendant  also  admits  the  several  allegations  contained  in  para- 
graph 2  of  the  statement  of  claim. 

3.  The  defendant  does  not  admit  that  he  wrote  or  published  or  spoke  or 
published  the  words  set  out  in  paragraph  3  of  the  statement  of  claim,  or 
any  or  either  of  such  words. 

4.  The  defendant  further,  even  if  it  be  proved  that  he  wrote  or  published 
or  spoke  or  published  the  words  alleged  in  the  said  paragraph  3  of  the 
statement  of  claim,  denies  that  he  wrote  or  published  or  spoke  or  published 
such  words  with  the  sense  or  meaning  alleged,  or  with  any  other  defama- 
tory or  actionable  sense  or  meaning. 

5.  The  defendant  denies  that  he  wrote  or  published  or  that  he  spoke  or 
published  the  words  set  out  in  paragraph  4  of  the  statement  of  claim  or 
any  or  either  of  such  words. 

524 


PLEADINGS   IN  LIBEL.  *  610 

6.  The  defendant,  even  if  it  be  proved  that  he  wrote  or  published  or 
spoke  or  published  the  words  set  out  in  the  said  paragraph  4  of  the  state- 
ment of  claim,  denies  that  he  wrote  and  published  or  spoke  and  published 
the  same  with  the  sense  or  meaning  alleged,  or  with  any  other  defamatory 
or  actionable  sense  or  meaning. 

7.  The  defendant  denies  that  he  wrote  or  published  the  words  set  out  in 
paragraph  5  of  the  statement  of  claim. 

8.  The  defendant,  even  if  it  be  proved  that  he  wrote  and  published  them 
at  all,  wholly  and  entirely  denies  that  he  Avrote  and  published  the  words 
alleged  in  paragraph  5  of  the  statement  of  claim  with  the  sense  or  meaning 
in  that  paragraph  alleged,  or  with  any  such  sense  or  in  any  defamatory  or 
actionable  sense. 

9.  The  defendant  denies  that  the  several  words  set  out  in  paragraph  3, 
paragraph  4,  and  paragraph  5  respectively  of  the  statement  of  claim,  even 
if  the  same  be  proved  to  have  been  respectively  written  and  published  or 
spoken  and  published  by  him,  were  or  that  any  or  either  of  them  were 
written  or  published  or  spoken  or  published  of  or  concerning  the  plaintift' 
J.  S. 

10.  The  defendant  further  denies  that  the  several  words  set  out  in  para- 
graphs 3,  4  and  5  respectively  of  the  statement  of  claim,  if  the  same 

or  any  or  either  be  proved  to  have  been  *  written  or  published  or    *  611 
spoken  or  published  by  him  at  all,  were  false  to  the  knowledge  of 
the  defendant  at  the  time  of  such  publication  (if  any)  by  him. 

11.  The  defendant  further,  if  the  writing  anil  publishing,  or  the  speaking 
and  publishing  of  the  said  words  in  jDaragraph  3,  paragraj^h  4,  and  para- 
graph 5  respectively  of  the  statement  of  claim,  or  of  any  or  either  of  them 
be  proved,  wholly  denies  that  he  wrote  and  published  or  spoke  and  pub- 
lished the  same  or  any  or  either  of  them  maliciously. 

1 2.  The  defendant  further  says  that  if  it  shall  be  proved  that  he  did 
write  or  publish  or  speak  or  publish  the  said  several  words  set  out  in  para- 
graphs 3,  4  and  5  of  the  statement  of  claim,  he  did  so  under  the  circum- 
stances following.  A  child  of  the  plaintiff's  named  F.S.,  had  as  mentioned 
in  paragraph  2  of  tlie  statement  of  claim,  accidentally  met  its  death  by 
burning,  and  an  inquest  had  been  held  on  it,  as  in  the  said  paragraph  2  of 
the  statement  of  chiim  is  also  mentioned.  The 'plaintiif,  M.,  had  during 
the  said  child's  lifetime,  frequently  ill-treated  and  neglected  the  said  child. 
Rumors  as  to  her  ill-treatment  and  neglect  of  the  said  child,  had  been  for 
some  time  before  such  child's  death  current  in  the  neighborhood.  After 
the  said  child's  death  such  rumors  still  continued.  Many  of  the  inhabi- 
tants in  the  neighborhood  entertained  a  strong  feehng  that  the  said  inquest 
had  been  conducted  in  an  unsatisfactory  way,  and  tliat  sufficient  inquiry  had 
not  been  made  into  the  circumstances  surrounding  the  death  of  the  said 
child.     The  defendant  was,  and  is  one  of  the  principal  residents  in  the  said 

62.3 


*  611  APPENDIX  A. 

neighborhood,  and  the  facts  above  stated  came  to  his  knowledge.  He, 
after  taking  reasonable  means  to  satisfy  himself,  in  good  faith  believed  that 
the  case  Avas  one  for  further  inquiry.  It  became  and  was  his  duty  to  take 
proper  steps  to  obtain  such  further  inquiry.  He,  in  conjunction  with 
others,  prepared  a  Memorial  to  Her  INIajesty's  Secretary  of  State  for  the 
Home  Department  for  the  purpose  of  obtaining  such  further  inquiry,  and 
signed  and  allowed  others,  who  were  also  acquainted  with  the  facts  and 
were  fit  and  proper  persons  to  do  so,  also  to  sign  the  same.  The  writings, 
speakings,  and  publishings  in  the  statement  of  claim  complained  of  (if  any 
such  be  proved)  are  the  writing  and  publishing,  and  the  reading,  speaking 
and  publishing  of  such  memorial  (the  contents  of  which,  however, 

*  612    the  *  defendant  as  aforesaid  does  not  admit,)  to  persons  in  the 

neighborhood  who  were  interested  in  the  matters  aforesaid  and  were 
fit  and  proper  persons  to  sign  such  memorial,  and  who  signed  or  discussed 
with  the  defendant  about  signing  the  same  in  conjunction  with  the  defend- 
ant, and  are  conversations  held  by  the  defendant  with  such  persons  as 
aforesaid  under  the  circumstances  aforesaid,  and  the  sending  of  the  said 
memorial  to  the  said  Right  Honorable  Her  Majesty's  Secretaiy  of  State  for 
the  Home  Department.  And  the  defendant  acted  in  good  faith  in  the  sev- 
eral publications  (if  as  aforesaid  any  such  publications  be  proved,)  and  made 
the  statements  in  conversations  (if  any  such  statements  be  proved,)  reason- 
ably and  in  good  faith  believing  the  same  to  be  true  and  acted  in  all  the 
matters  aforesaid  wholly  without  malice.  By  reason  of  the  facts  herein- 
before appearing,  the  said  several  publications  complained  of  were  and  are 
privileged  communications. 


No.  12. 

Reply. 

1.  The  plaintiffs  join  issue  on  the  statement  of  defence  herein  save  so  far 
as  it  admits  the  allegations  contained  in  the  statement  of  claim. 

2.  As  to  paragraph  12  of  the  statement  of  defence,  the  plaintiffs  deny 
that  the  plaintiff,  M.,  frequently  or  ever  neglected  or  ill-treated  the  said 
child  during  its  lifetime,  or  that  there  was  any  feeling  that  the  inquest 
upon  the  death  of  the  said  child  had  been  conducted  in  an  unsatisfactory 
and  insufficient  manner,  and  the  plaintiffs  further  deny  that  there  Avas  any 
■duty  upon  the  defendant  or  upon  any  one  to  obtain  any  further  inquiry.  The 
I)laintiffs  deny  that  the  publications  of  the  said  libels  and  slanders  were 
made  for  the  purposes  of  and  in  relation  to  the  said  memorial  as  alleged,  or 
that  they  were  made  to  persons  who  were  interested  in  the  matters  aforesaid, 
and  the  plaintiffs  deny  that  the  said  publications  were  or  are  privileged 
communications. 

526 


PLEADINGS  IN  LEBEL.  *612 

3.  The  plaintiffs  further  say  that  the  defendant,  in  what  he  did,  was 
actuated  by  malice. 


*  No.  13.  *  613 

Rejoinder. 

The  defendant  joins  issue  upon  the  second  and  third  paragraphs  of  the 
reply. 


No.  14. 

Libel  contained  in  a  Placard. 

Statement  of  Claim. 

C.  D.  V.  E.  F. 

1.  The  plaintiff  is,  &c. 

2.  The  defendant  is,  &c. 

3.  The  defendant  on  or  about  the  10th  day  of  January,  18 — ,  falsely 
and  maliciously  published  a  certain  libellous  placard  referring  to  the  plain- 
tiff as  follows  :  — 

"  Notice. 

"  I  the  undersigned  decline  the  offer  made  to  me  by  C.  D.,  of  Walcot,  on 
Wednesday  last  of  the  sum  of  £50  to  strike  him  and  to  cause  me  to  com- 
mit a  breach  of  the  peace. 

January,  10th,  18—.  E.  F.,  of  Walcot." 

4.  On  or  about  the  11th  day  of  January,  18 — ,  the  defendant  again  pub- 
lished the  same  false,  malicious,  and  libellous  placard  set  forth  in  the  last 
paragraph. 

5.  On  or  about  the  15th  day  of  February,  18 — ,  the  defendant  published 
a  third  printed  placard,  which  placard  was  fiilse,  malicious,  and  libellous, 
and  was  as  follows  :  — 

[Here  set  out  placard.] 
meaning  thereby  that  the  plaintiff,  or  some  one  at  his  instigation,  was  guilty 
of  the  acts  alleged  to  have  been  committed. 

6.  On  or  about  the  17th  day  of  March,  18—,  the  defendant  published 
a  fourth  placard  which  was  false,  malicious,  and  libellouSj  and  was  as 
follows  :  — 

[Here  set  out  the  placard.] 

527 


*  613  APPENDIX   A. 

7.  In  consequence  of  the  above-mentioned  placards  published 

*  614    *by  the  defendant  the  plaintiff  has  suffered  much  annoyance  and 

has  been  disgraced  and  subjected  to  loss  of  reputation  and  of  busi- 
ness and  also  suffered  in  his  credit  and  good  name. 
The  plaintiff  claims  £1000  damages. 


No.  15. 
Statement  of  Defence. 

1.  The  defendant  admits  the  facts  stated  in  paragraphs  1  and  2  of  the 
statement  of  claim. 

2.  The  defendant  as  to  paragraph  No.  3  admits  the  publication  of  the 
placard  therein  referred  to,  but  denies  the  allegation  that  the  same  is  false 
and  malicious,  and  says  that  the  matters  stated  in  the  said  placard  are  true 
in  substance  and  in  fact. 

3.  As  to  paragraph  No.  4  the  defendant  denies  the  allegation  therein 

contained. 

4.  The  defendant  as  to  paragraph  No.  5  admits  the  publication  of  the 
placard  therein  referred  to,  but  denies  the  allegation  that  the  same  is  false 
and  malicious ;  the  defendant  also  denies  the  alleged  meaning,  and  says 
that  the  several  matters  stated  in  the  said  placard  are  true  in  substance  and 
in  fact,  and  were  published  by  the  defendant  for  the  purpose  of  endeavor- 
ing to  discover  the  person  who  committed  the  assault  referred  to  in  the 
said  placard,  and  with  the  bond  fide  object  and  intention  of  bringing  such 
person  to  justice  and  of  prosecuting  him  to  conviction  and  not  otherwise. 

5.  The  defendant  as  to  paragraph  6  admits  the  publication  of  the  placard 
therein  referred  to,  but  denies  the  allegation  that  the  same  is  false  and 
malicious ;  the  defendant  also  denies  the  alleged  meaning,  and  says  that 
the  several  matters  set  forth  in  the  said  placard  are  true  in  substance  and 
in  fact,  and  were  published  by  the  defendant  with  the  bond  fide  object  of 
endeavoring  to  discover  the  person  or  persons  guilty  of  causing  the  several 
annoyances  and  committing  the  several  assaults  and  offences  mentioned  in 
the  said  placard  and  of  bringing  the  offender  or  offenders  to  justice  and  not 
otherwise. 

6.  As  to  paragraph  No.  7,  the  defendant  denies  the  allegations  therein 
contained  and  each  and  every  of  them  respectively. 
628 


PLEADIXGS   IN  LIBEL.  *  615 


*No.  16.  *615 

Action  against  the  Manager  of  a  Bank  for  showing  to  a   Customer  an 

Anonymous  Letter. 

Robshaw  v.  Smith,  28  L.  T.  423. 

Statement  op  Claim. 

1.  The  defendant  is  the  general  manager  of  the  London  and  Yorkshire 

Bank  (Limited),  and  the  plaintiff  carries  on  business  as  a  merchant  at 

Street,  in  the  City  of  London. 

2.  Prior  to  the  31st  of  May,  1877,  the  plaintiff  had  had  considerable 
business  transactions  with  one  J.  H.,  also  a  merciiant,  from  which  he  had 
derived  large  profits,  and  several  such  transactions  were  then  in  progress 
between  the  plaintiff  and  the  said  J.  H.,  and  the  said  J.  H.  would  have 
continued  to  have  such  transactions  with  the  plaintiff  hereinafter  referred 
to,  and  the  said  J.  H,  had  offered  the  plaintiff  to  take  him  into  his  employ- 
ment as  manager,  upon  terms  which  would  have  given  the  plaintiff  a  salary 
of  from  £3000  to  £4000  per  annum  for  his  services. 

3.  On  the  31st  May  the  said  J.  H.  called  upon  the  defendant,  and  tho 
defendant  then  falsely  and  maliciously  published  to  the  said  J.  H.  the 
following  letter  of  and  concerning  the  plaintiff  :  — 

"16th  of  August,  187G. 

"  Caution  and  worth  inquiry. 

"  Are  you  aware  tliat  the  new  partner  of is  George  Eobshaw  " 

(meaning  the  plaintiff),  "  formerly  of  George  Eobshaw  &  Co.,  manufac- 
turers, of ,  bankrupts  "  (meaning  thereby  that  the  plaintiff  had  been 

member  of  a  firm  which  had  become  bankrupt),  "  into  the  burning  of  whose 
mills  an  inquiry  was  made  "  (meaning  thereby  that  the  plaintiff  had  been 
guilty  of,  and  suspected  and  accused  of,  arson),  "  who  Mr.  R.,  the  account- 
ant of ,  acting  as  trustee  to  the  estate,  wished  to  prosecute  "  (meaning 

thereby  that  the  plaintiff  had  defrauded  his  creditors,  and  been  guilty  of 
offences  against  the  bankruptcy  laws),  "  but  was  unable  to  find,  as  he  fled 

away  to ,  where  he  became  partner  or  manager,  at  different  times,  to 

two  firms,  both  of  whom  after  getting  possession  of  considerable  lots 

*  of  goods  fled  away  "  (meaning  thereby  that  the  plaintiff  had  been    *  616 

guilty  of  obtaining  goods  by  false  pretences  and  other  like  offences). 

"  Robshaw  was  in  prison  at for  his  share  "  (meaning  thereby  that  the 

plaintiff  had  been  found  guilty  by  law  of  the  said  offences,  and  had  been 
in  prison  therefor).     "  He"  (meaning  the  plaintiff)  "  is  the  same  man  who 

was  brought  before  the magistrates  for  the  misappropriation  of  certain 

securities,  and  which  case  was  compromised  on  his  partner  paying  a  portion 

34  529 


*616  APPENDIX  A. 

of  the  amount "  (meaning  thereby  that  the  plaintiff  had  been  guilty  of  lar- 
ceny). "  Why  has  L.  so  suddenly  become  a  buyer,  but  to  keep  himself 
afloat,  and  to  keep  the  ball  rolling  as  long  as  he  can  before  the  crisis 
arrives?  He  has  no  money  left"  (meaning  that  the  plaintiff  had  become 
partner  in,  or  manager  of,  a  firm  in  an  insolvent  condition,  which  was  en- 
tering into  fraudulent  transactions  to  defraud  its  creditors,  and  that  the 
plaintiff  was  conniving  at,  aiding,  and  abetting  in  such  fraud).  "  This  is 
worth  inquiry,  and  being  communicated  to  your  other  branches,  particu- 
larly at  B.,  H.  and  S." 

4.  Owing  to  the  conduct  of  the  defendant  set  forth  in  the  preceding 
paragraph,  the  said  J.  H.  refused  to  have  any  further  transaction  with  the 
plaintiff,  and  the  plaintiff  lost  the  profits  he  would  otherwise  have  made 
thereby,  and  the  said  J.  H.  also  refused  to  take  the  plaintiff  into  his  em- 
ployment as  he  would  otherwise  have  done,  and  the  plaintiff  has  lost  the 
benefit  of  such  eipployment  and  the  emoluments  thereof,  and  has  been 
much  injured  in  his  credit,  reputation,  and  business,  and  has  been  other- 
wise damnified. 

The  plaintiff  claims  £2000  damages. 


No.  17. 
Statement  of  Defence. 


1,  -2,  3,  4,    The  defendant  does  not  admit,  &c. 

6.  The  statements  contained  in  the  said  letter  are  true  in  substance  and 
in  fact,  according  to  the  fair  and  ordinary  meaning  of  the  words  used  in  the 

said  letter. 
*  617  6.  The  publication  of  the  said  letter  to  H.,  if  made,  was  *  privi- 
leged, and  was  made  bond  fide  and  without  malice.  H.,  having  an 
interest  in  certain  business  transactions,  in  which  the  plaintiff  and  the  de- 
fendant's bank  were  concerned,  made  inquiries  of  the  defendant  as  to  the 
plaintiff,  and  it  was  in  answer  to  such  inquiries  that  the  publication,  if 
any,  of  the  said  letter  took  place. 
530 


PLEADINGS  IN  LIBEL.  *  617 

No.  18. 

Action  for  Publishing  a  Libellous  Novel. 

Statement  of  Defexce. 

1.  The  defendants  admit  that  they  printed  and  published  the  hook  or 
novel  in  the  statement  of  claim  mentioned,  but  deny  that  they  did  so 
falsely  and  maliciously.  The  defendants  printed  and  published  the  said 
book  or  novel  for  the  writer  thereof,  reasonably  and  bond  fide  believing 
the  same  to  be  a  work  of  pure  fiction.  The  defendants  were  not  then 
aware,  and  do  not  now  admit,  that  the  said  book  or  novel  alluded  to  the 
plaintiffs  or  to  any  other  living  person.^ 

2.  In  answer  to  paragraphs  3,  4,  5,  of  the  statement  of  claim,  the  de- 
fendants deny  that  they  printed  or  published  the  words  therein  set  forth  of 
or  concerning  plaintiffs,  or  any  of  them,  as  is  alleged. 

3.  In  further  answer  to  the  said  paragraphs  the  defendants  deny  that 
the  words  therein  set  forth  bear  the  sense  therein  given  to  them. 


*No.  19.  *618 

Action  against  a  Newspaper  Proprietor. 
Bond  fide  Comment  on  a  Matter  of  Public  Interest. 
Statement  of  Defence. 

1.  The  defendant  is,  and  at  the  time  of  the  alleged  grievances  was,  the 
proprietor  of  the  Times  newspaper. 

2.  On  the  evening  of  the  12th  of  February,  1867,  the  plaintiff  had  pre- 
sented to  the  House  of  Lords  a  petition  making  a  serious  charge  against  one 
of  Her  Majesty's  judges ;  a  debate  ensued  on  the  presentation  of  the  said 
petition,  and  the  said  charge  was  utterly  refuted. 

3.  The  words  set  out  in  paragraph  3  of  the  statement  of  claim  are  a 
portion  of  the  Parliamentary  Eeport,  published  in  the  Times  for  the  13th 
of  February,  1867.  They  are  a  fair  and  accurate  report  of  the  proceedings 
of  the  House  of  Lords  on  the  preceding  evening,  and  were  published  by 
the  defendant  bond  fide,  and  without  any  malice  towards  the  plaintiff. 

4.  The  said  petition,  the  charge  it  contained,  and  tlie  said  debate,  were, 
and  are,  all  matters  of  general  public  interest  and  concern. 

5.  The  words  set  out  in  paragraph  5  of  the  statement  of  claim  are  a  por- 

^  It  may  be  doubted  whether  this  is  a  defence  to  the  action  or  only  a  plea  in  miti- 
gation of  damages  ;  see  ante,  pp.  159,  384,  b,  1 ;  R.  v.  Knell,  1  Barnard.  305  ;  Smith 
V.  Ashley,  52  Mass.  (11  Met.)  367. 

531 


*618  APPENDIX  A. 

tion  of  a  leading  article  whicli  appeared  in  the  Times  for  the  1 3th  of 
February,  18G7.  The  said  article  was  a  fair  and  impartial  comment  on  the 
matters  above  referred  to,  and  was  published  by  the  defendant  bond  fide 
for  the  benefit  of  the  public,  and  without  any  malice  towards  the  plaintilf. 

See  Wason  v.   Walter,  L.  R.  4  Q.  B.  73  ;  8  B.  &  S.  671;  38  L.   J.   Q.  B.   34  ;  17 
W.  E.  169;  19  L.  T.  409. 


No.   20. 

Action  against  the  Printers  of  a  Newspaper. 

Report  of  a  Judicial  Proceeding. 

Statement  of  Defence. 

1.  The  defendants  are  the  printers  and  publishers  of  the County 

Gazette. 
*  619        *  2.  On  the day  of  ,  1879,  the  plaintiff  applied  to 

the  bench  of  magistrates  for  the  division  of  the  said 

county,  at  a  special  licensing  sessions,  for  a  spirit  license.  This  application 
the  magistrates  refused. 

3.  On  the day  of  ,  1879,  the  defendants  published,  as  usual, 

in  their  said  Gazette,  a  report  of  the  proceedings  before  the  said  magis- 
trates on  the  preceding  day,  including  an  accurate  and  impartial  account  of 
the  plaintiff's  application,  and  the  reasons  stated  by  the  bench  for  their 
refusal,  which  is  the  alleged  libel. 

4.  Such  account  was  published  by  the  defendant  bond  fide,  and  without 
malice,  and  for  the  public  benefit,  and  in  the  usual  course  of  the  defend- 
ant's business  and  duty  as  a  pubhc  journalist ;  and  was,  and  is,  a  correct, 
fair,  and  honest  report  of  proceedings  of  public  interest  and  concern. 

5.  And  the  defendants  further  say  that  the  publication  complained  of  is 
no  libel. 

As  to  paragraph  5,  if  it  means  anything  more  than  has  been  already  said  in  para- 
graph 4,  see  ante,  p.  483. 


No.  21. 

Interrogatories  in  an  Action  against  a  Nervspaper  Proprietor  (allowed  in 
Lefroy  v.  Bumside,  4  L.  E.  (Ir.)  340 ;  41  L.  T.  199 ;  14  Cox,  C.  C. 
2G0  ;  ante,  p.  514). 

*'  Intcrro<^atories  on  behalf  of  the  above-named  plaintiff  for  the  examina- 
tion of  the  above-named  defendant : — 

632 


pleadi^:gs  in  libel.  *  619 

"1.  Is  it  not  the  fact  that  in  the  said  newspaper  published  on  the  Gth 
day  of  July,  1878,  or  some  other  and  what  date,  an  article  appeared  in  the 
words  and  figures  set  forth  in  the  sixth  paragraph  of  the  statement  of  claim 
in  this  action  1     If  not  how  otherwise  1 

"  2.  "Were  not  you,  the  defendant  William  Burnside,  upon  and  before 
the  said  Gth  day  of  July,  1878,  or  some  other  and  what  date,  the 
proprietor,  either  alone,  or  jointly  with  some  other  and  what  person  or 
persons,  of  the  said  newspaper  1 

"XoTE. The  defendant  must  answer  all  the  above  interrogatories  on 

oath  within  ten  days. 

"  Delivered  by,  &c." 


*Xo.  22.  *620 

Interrogatories  on  the  part  of  the  Plaintiff,  to  be  anmered  hj  an  Officer  of  the 
"  Leeds  Daily  Neics  Comjjany  (Limited)"  and  by  the  Defendant,  William 
Lauries  Jac/cson. 

"1.  Is  the  defendant,  William  Lauries  Jackson,  the  editor  or  publisher 
of  the  '  Leeds  Daily  News,'  and  what  position  does  he  occupy  in  respect  of 
the  said  neivsjMper  ? 

"  2.  Is  the  said  "William  Lauries  Jackson  a  shareholder  in  the  said  com- 
pany ] 

"  3,  Is  it  the  duty  of  the  said  "William  Lauries  Jackson  to  exercise  a 
supervision  over  paragraphs  of  the  nature  of  those  set  out  in  the  statement 
of  claim  ? 

"  4.  Did  the  said  William  Lauries  Jackson  write,  or  have  anythbiy  to  do 
loith  the  writing  of,  any  and  which  of  the  paragraphs  mentioned  in  the  statement 
of  claim :  and,  if  not,  tcho  was  the  icriter  of  such  paragraphs,  and  of  each  of 
them.  ? 

"5.  Did  the  said  William  Lauries  Jaclcson  see  any  and  rchich  of  the  said 
paragraphs  before  they  were  inserted  in  the  newspaper,  or  before  the  imcspaper 
was  published  or  circulated,  and  did  he  sanction  the  publication  of  the  said 
paragraphs,  or  of  any  and  which  of  them  ? 

"  G.  By  whom,  and  in  what  way,  were  the  said  paragraphs  brought  to 
the  office  of  the  ncAvspaper  company ;  or  were  they  received  by  any  one 
else  and  whom  on  their  account,  at  one  time ;  and,  if  not,  when  were 
they  received  % 

"  7.  Were  the  numbers  of  the  '  Leeds  Daily  Xews  '  of  the  13th  August, 
1875,  19th  August,  1875,  10th  September,  1875,  and  the  numbers  of  the 
'  Leeds  Daily  News,'  containing  the  paragraph  commencing  with  the  word 
'Query,'   printed   and   published   by  the   Leeds   Daily   News   Company 

633 


*  620  APPENDIX  A. 

(Limited),  or  by  the  defendant  William  Lauries  Jackson,  or  by  both  of 
them?" 

N.  B.  —  The  words  in  italics  were  struck  out  hy  Archibald,  J.,  at  Chambers  on 
January  8th,  1876;  see  Weekly  Notes  for  1876,  p.  11;  1  Charley,  101;  Bitt.  91;  20 
Sol.  J.  218;  60  L.  T.  Notes,  196. 


*  621  *  :N'o.  23. 

Notice  of  the  defendant's  intention  of  giving  evidence  of  an  Apology  in  Mitiga- 
tion of  Damages,  to  be  delivered  with  the  Plea,  under  the  6^7  Vict. 
c.  96,  5.  1. 

In  the  High  Court  of  Justice, 
Queen's  Bench  Division. 

Between  A.  B.         .         .     Plaintiff, 
and 
U.  F.         .         .     Defendant. 
Take  notice,  that  the  defendant  intends  on  the  trial  of  this  cause  to  give 
in  evidence,  in  mitigation  of  damages,  that  he  made  [or  offered]  an  apology 
to  the  plaintiff  for  the  defamation  complained  of  in  the  statement  of  claim 
herein,  before  the  commencement  of  this  action  [or  as  soon  after  the  com- 
mencement of  this  action  as  there  was  an  opportunity  of  making  or  offering 
such  apology,  the  action  having  been  commenced  before  there  was  an  op- 
portunity of  making  or  offering  such  apology] . 

Yours,  etc., 
G.  H.,  defendant's  solicitor  [or  agent]. 

To  Mr.  C.  D.,  plaintiff's 
solicitor  or  agent. 

For  a  precedent  of  a  plea  under  the  second  section  of  Lord  Campbell's 
Libel  Act  (6  &  7  Vict.  c.  96,)  see  ante,  p.  488. 
534 


PLEADINGS  IN  SLANDER.  *  621 


II.   PRECEDENTS   OF  PLEADINGS  IN  ACTIONS   FOR 

SLANDER. 

No.  24. 

Words  imputing  a  Crime. 

Statement  of  Claim. 

1.  The  plaintiff  is  a  baker,  carrying  on  business  at ,  in  the  county 

of  Middlesex. 

2.  On  or   about   the    8th   day  of  May,  1880,  the    defendant 

*  falsely  and  maliciously  spoke  and  published  of  the  plaintiff  the    *  622 
words  following,  that  is  to  say  :  —  "  He  is  a  regular  smasher  "  ;  the 
defendant  meaning  thereby  that  the  plaintiff  had  uttered,  and  was  in  the 
habit  of  uttering,  counterfeit  coin,  with  the  knowledge  that  such  coin  was 
counterfeit,  and  had  been  guilty  of  a  misdemeanor. 

3.  The  plaintiff  has,  by  reason  of  the  premises,  been  greatly  injured  in 
his  credit  and  reputation. 

And  the  plaintiff  claims,  &c. 


No.  25. 
Statement  of  Defexce. 

1.  The  defendant  admits  that  he  spoke  and  published  the  words  set  out 
in  paragraph  2  of  the  plaintiff's  statement  of  claim,  but  denies  that  he 
spoke  them  maliciously  or  with  the  meaning  in  that  paragraph  alleged. 

2.  The  defendant  is,  and  at  all  times  hereinafter  mentioned  was,  clerk 
to  Mr.  N.,  a  wholesale  baker.  The  plaintiff  is  one  of  Mr.  N.'s  retail  cus- 
tomers. It  is  and  was  one  of  the  duties  of  the  defendant  as  such  clerk  to 
call  on  Mr.  N.'s  retail  customers  every  Saturday  morning  and  receive  the 
money  due  for  the  bread  delivered  to  them  in  the  course  of  the  week. 

3.  On  the  morning  of  Saturday,  March  the  27th,  1880,  the  defendant 
called  on  the  plaintiff  and  took  the  money  for  the  bread  delivered  to  him 
during  the  week.  Amongst  the  change  then  given  by  the  plaintiff  to  the 
defendant  was  a  counterfeit  florin.  Neither  the  plaintiff  nor  the  defendant 
knew  or  observed  at  the  time  that  the  florin  was  counterfeit. 

4.  Later  in  the  day  when  the  defendant  was  paying  the  money  over  at 
the  office,  his  employer,  Mr.  N.,  discovered  that  the  said  florin  was  counter- 

535 


*622  APPENDIX  A. 

feit.  The  defendant  thereupon  took  the  said  florin  back  to  the  plaintiff's 
shop,  and  the  plaintiff  gave  him  without  demur  two  good  shillings  in  ex- 
change therefor. 

5.  On  the  morning  of  Saturday,  May  the  8th,  1880,  when  the 

*  623    defendant  called  on  the  plaintiff  as  usual,  the  plaintiff  *  again  gave 

the  defendant  a  counterfeit  florin  amongst  the  money  for  the  bread. 

And  again  neither  the  plaintiff  nor  the  defendant  knew  or  observed  at  the 

time  that  the  florin  was  counterfeit. 

6.  Again,  when  the  defendant  was  paying  the  money  over  to  his  em- 
ployer at  the  office,  Mr.  X.  discovered  that  the  florin  was  counterfeit. 
Thereupon  the  defendant,  recollecting  the  similar  occurrence  mentioned 
in  paragraphs  3  and  4  above,  exclaimed  :  —  "Why,  that's  the  second  bad 
florin  Mr.  H.  has  passed  to  me  within  the  last  six  weeks.  He's  a  regular 
'  smasher  ' !  " 

7.  The  defendant  spoke  these  words  as  a  joke,  and  never  intended  se- 
riously to  impute  to  the  plaintiff  any  criminal  offence. 

8.  The  only  persons  who  were  present  at  the  time  or  who  heard  the  said 
words  were  the  defendant's  employer,  ]Mr.  X.,  and  a  fellow-clerk  of  his, 
one  David  Griggs.  Both  Mr.  X.  and  David  Griggs  were  aware  of  the  cir- 
cumstances detailed  above,  and  knew  to  what  the  defendant  was  referring, 
and  understood  that  he  spoke  in  joke,  and  did  not  intend  to  make  any 
serious  charge  against  the  plaintiff. 

[N.B.  This  is  a  magnanimous  and  conciliatoiy  line  of  defence.  The  plaintiff,  if 
K'ell  advised,  will  at  once  settle  the  matter  amicably.  "All  imputations  withdrawn  ; 
defendant  to  pay  a  guinea  to  a  hospital  named  by  the  plaintiff ;  each  party  to  pay  their 
own  costs."  If  he  does  not,  the  defendant  is  almost  sure  of  a  verdict.  See  ante,  pp. 
107,  109  ;  Thompson  v.  Bernard,  1  Camp.  48.  But  sometimes  a  defendant,  if  foolish 
and  angry,  insists  on  setting  up  a  more  vindictive  defence.  He  denies  uttering  the 
■words,  so  as  to  compel  the  tell-tale  Griggs  to  come  into  the  box  and  be  cross-examined  ; 
and  he  then  proceeds  to  justify.  These  tactics  will  infallibly  lead  to  a  verdict  for  the 
plaintiff  with  heavy  damages.] 


No.  26. 

Statement  op  Defence. 

1.  The  defendant  denies  the  allegations  contained  in  paragraphs  2  and  3 

of  the  plaintiff's  statement  of  claim,  and  each  and  every  of  them. 

*  62-4        *  2.  The  defendant  does  not  admit  that  he  spoke  or  published 

the  words  set  out  in  paragraph  2  of  the  plaintiff's  statement  of 

claim ;  but,  if  he  did,  the  same  are  true  in  substance  and  in  fact.     On 

March  27th,  1880,  the  plaintiff  uttered   and  passed  to  the  defendant  a 

counterfeit  florin,  well  knowing  the  same  to  be  counterfeit.     On  May  8th, 

536 


PLEADINGS   IN   SLANDER.  *  624 

1880,  the  plaintiff  uttered  and  passed  to  the  defendant  another  counterfeit 
florin,  "well  knowing  the  same  to  be  counterfeit.  \_State  any  other  instances 
in  which  the  plaintiff  passed  bad  coin  to  the  defendant  or  others. '\  "Where- 
fore the  defendant  says  that  the  plaintiff  is  a  regular  '  smasher,'  and  has 
uttered,  and  has  been  in  the  habit  of  uttering,  conterfeit  coin,  "well  kno"wing 
the  same  to  be  counterfeit  j  and  has  been  guilty  of  divers  misdemeanors. 


E"o.  27. 

Words  imputing  a  Contagious  Disorder. 

L.  V.  K. 

Statement  of  Claim. 

1.  At  the  time  of  the  speaking  and  publishing  by  the  defendant  of  the 
"words  hereinafter  set  out,  the  plaintiff  "was  a  tailor,  and  carrying  on  business 
as  such,  and  "was  a  married  man. 

2.  The  defendant  falsely  and  maliciously  spoke  and  published  of  the 
plaintiff  the  words  following  (that  is  to  say)  :  "  I  "  (meaning  the  defend- 
ant) "  hear  L."  (meaning  the  plaintiff)  "  has,  &c.,"  thereby  meaning  that 
the  plaintiff  was  suffering  from  a  loathsome  contagious  disorder,  and  had 
communicated  the  same  to  his  wife,  and  was  unfit,  by  reason  of  such  dis 
order,  to  be  admitted  into  society. 

3.  By  reason  of  the  pi-emises  the  plaintiff  was  injured  in  his  credit  and 
reputation,-'  and  brought  into  disgrace  among  his  neiglibors  and  friends,  and 
has  been  deprived  of,  and  ceased  to  receive  their  hospitality. 

4.  The  defendant  falsely  and  maliciously  spoke  and  published  of  the 
plaintiff,  in  relation  to  his  said  business,  the  words  following  (that 

is  to  say)  :  "  I  "  (meaning  the  defendant),  *  "  &c.,"  thereby  mean-    *  625 
ing  that  the  plaintiff  was  in  embarrassed  pecuniary  circumstances, 
and  unaVjle  to  meet  his  liabilities. 

5.  By  reason  of  the  matters  in  the  preceding  paragraph  mentioned,  the 
plaintiff  was  injured  in  his  credit  and  reputation  as  a  tailor,  and  in  his 
business,-^  a^id  many  persons,  tvho  had  theretofore  dealt  with  the  plaintiff  in 
his  said  business,  ceased  to  deal  with  him. 

The  plaintiff  claims  £ damages. 

1  The  plaintiff  being  vuiable  to  name  the  persons  referred  to  in  paragraphs  3  and  5, 
the  statement  of  claim  was  amended  by  striking  out  the  words  in  italics  above. 

537 


*  625  APPENDIX  A. 

No.  28. 

L.  V.  K. 

Particulars. 

The  following  are  the  best  particulars  the  plaintiff  can  give  of  the  times, 
places,  and  persons,  when,  where,  and  to  whom  the  alleged  slanders  were 
uttered,  and  the  damages  sustained. 

The  said  slanders  were  uttered  in  the  month  of  October,  1876,  in  the 
presence  of  G.  R,  of  —  High  Street,  in  the  City  of  Bath,  and  his  manager, 
W.  K.,  at  —  High  Street,  Bath  aforesaid. 

The  plaintiff  cannot  give  the  names  ^  of  the  persons  who  have  ceased  to 
deal  with  him,  but  will  prove  a  general  diminution  of  receipts  in  business, 
and  finds  he  is  not  invited  and  received  into  society  as  he  used  to  be. 

The  above  particulars  are  dehvered  pursuant  to  the  order  of  Master  But- 
ler, dated  the  18th  day  of  December,  1877. 

Dated  this  9th  day  of  March,  1878. 

B.  &  F.,  Plaintiff's  agents. 

To . 

Defendant's  agent. 

*  626  *  No-  29. 

L.  V.  K. 
Statement  of  Defence. 

1.  The  defendant  denies  that  he  spoke  and  published  of  the  plaintiff  the 
words  in  the  2nd  and  4th  paragraphs  of  the  statement  of  claim  respectively 

set  out. 

2.  The  defendant  does  not  admit  the  allegations  in  the  3rd  and  5th 
paragraphs  of  the  statement  of  claim  contained. 


L.  V.  K. 
Reply. 
The  plaintiff  joins  issue  with  the  defendant  upon  his  defence. 

1  The  plaintiflF  being  unable  to  name  the  persons  referred  to  in  paragraphs  3  and  6, 
the  statement  of  claim  was  amended  by  striking  out  the  words  in  italics  above. 

638 


PLEADINGS  IN   SLANDER.  *  626 

No.  30. 

Words  spoken  in  a  Foreign  Language. 

Statement  op  Claim. 

1.  The  plaintiff  is  a  farmer  residing  at  LI.  in  the  county  of  Glamorgan. 

2.  The  defendant  is,  &c. 

3.  On  the day  of 1880,  the  defendant  falsely  and  maliciously 

spoke  and  published  of  the  plaintiff  in  the  Welsh  language  the  words  fol- 
lowing, that  is  to  say  :  —  [Here  set  out  the  libel  verbatim  in  the  Welsh  lan- 
guage.] 

4.  The  said  words,  being  translated  into  the  English  language,  have,  and 
were  understood  by  the  persons  to  whom  they  were  so  published  to  have, 
the  meaning  and  effect  following,  that  is  to  say  :  —  [Here  set  out  a  literal 
translation  of  the  libel  in  t/k  English  language,  adding  any  innuendoes  which 
may  be  necessary.] 

5.  Whereby  the  plaintiff  was  injured  in  his  credit  and  reputation,  &c. 
[Allege  any  special  damage  that  may  exist.] 


*No.  31.  *627 

Words  spoken  of  a  Medical  Man. 
Statement  op  Claim. 

1.  The  plaintiff  is  a  M.  E.  C.  S.  of  London  and  Edinburgh,  and  carries 
on  the  profession  and  business  of  a  surgeon  and  general  medical  practitioner 
in  the  city  of and  its  neighborhood. 

2.  The  defendant  is  a  clergyman,  residing  in  the  said  city. 

3.  On  the  9th  day  of  January,  1880,  the  plaintiff  was  called  in  by  the 
defendant  to  attend  his  infant  daughter,  who  was  then  lying  dangerously 
ill.  On  the  14th  day  of  January  the  said  daughter  died,  through  no  negli- 
gence or  default  of  the  plaintiff. 

4.  Thereupon  the  defendant  falsely  and  maliciously  spoke  and  published 
of  the  plaintiff  in  relation  to  his  said  profession  and  business,  and  the  plain- 
tiff's conduct  therein,  the  words  following,  that  is  to  say  :  —  "  Mr.  E. 
(meaning  the  plaintiff)  killed  my  child." 

5.  The  defendant  meant  thereby  that  the  plaintiff  had  been  guilty  of 
feloniously  killing  his  said  daughter  by  treating  her  improperly  and  with 
gross  ignorance  and  with  gross  and  culpable  want  of  caution  and  skill,  and 
thus  causing  or  accelerating  her  death. 

539 


*  627  APPENDIX  A. 

6,  And  in  the  alternative,  the  plaintiff  says  that  the  defendant  meant 
thereby  that  tlie  plaintiff  had  been  guilty  of  misconduct  and  negligence  in 
his  said  profession  and  business,  and  had  acted  in  his  said  profession  and 
business  negligently,  injudiciously,  indiscreetly,  and  improperly,  and  had 
not  done  his  duty  by  his  patient,  and  was  unfit  to  be  employed  as  a  medi- 
cal man. 

7.  In  consequence  of  the  defendant's  words,  the  plaintiff  has  been  and  is 
greatly  prejudiced  and  injured  in  his  credit  and  reputation,  and  in  his  said 
profession  and  business  of  surgeon  and  general  medical  practitioner. 


*  628  *  Xo.  32. 

Slander  of  a  Clergyman. 
A.  v.G.^ 
Statement  of  Claim. 

1.  The  plaintiff  is,  and  at  all  times  hereinafter  mentioned  was,  a  clergy- 
man of  the  Church  of  England,  a  doctor  of  divinity,  and  vicar  of  the  parish 

of . 

2.  The  defendant  is  a  farmer  residing  in  the  said  parish. 

3.  It  is,  and  was,  the  custom  and  the  duty  of  the  plaintiff  as  such  vicar 
as  aforesaid  to  constantly  visit  the  parochial  school  in  his  said  parish,  and 
to  superintend  the  management  thereof.  Miss  E.  B.  was,  and  is,  the  mis- 
tress of  the  said  school. 

4.  Whereupon  the  defendant,  on  the  25th  day  of  April,  1880,  well 
knowing  the  premises,  and  intending  to  injure  the  plaintiff  in  his  good 
name  and  credit  as  a  clergyman  of  tlie  Church  of  England,  and  to  cause  it 
to  be  believed  that  the  plaintiff  had  misconducted  himself  as  such  vicar  as 
aforesaid  falsely  and  maliciously  spoke  and  published  of  the  plaintiff,  in  re- 
lation to  his  cliaracter  and  profession  as  a  clergyman  of  the  Church  of  Eng- 
land, and  to  his  office  and  benefice  as  such  vicar  as  aforesaid,  and  to  the 
plaintiff's  conduct  therein,  the  words  following,  that  is  to  say: — "Miss 

E.  B.  (meaning  thereby  the  said  schoolmistress),  &c "      Meaning 

thereby  that  the  plaintiff  had  been  guilty  of  undue  familiarity  with  the 
said  Miss  E.  B.,  and  had  habitually  been  guilty  of  conduct  unbecoming  a 
clergyman  of  the  Church  of  England,  and  had  misconducted  himself  in  his 
office  and  benefice  as  such  vicar  as  aforesaid,  and  was  unfit  to  continue  in 
the  same,  or  to  hold  any  other  preferment. 

5.  And  on  divers  other  occasions  between  the  said  25th  day  of  April  and 
the  4th  day  of  May,  1880,  the  defendant  falsely  and  maliciously  repeated 
the  same  slander  with  the  like  meaning  in  the  last  paragraph  assigned. 

540 


PLEADINGS   m   SLANDER.  *  628 

6.  Whereb}'-  the  plaintiff  has  been,  and  is,  greatly  injured  in  his  credit 
and  reputation,  and  in  his  said  character  and  profession  as  a  clergyman  of  the 
Church  of  England,  and  in  his  office  and  benefice  as  such  vicar  as  aforesaid ; 
and  has  been  brought  into  public  scandal,  ridicule  and  contempt. 

And  the  plaintiff  claims  <£ damages. 


*No.  33.  *629 

Slander  of  a  Parish  Clerk. 
L.  V.  P. 
Statement  op  Claim. 

1.  The  plaintiff  is  a  verger  and  church  clerk,  residing  at .     He  has 

been  since  1877  verger  and  church  clerk  of  the  district  parish  church 
of  — . 

2.  The  defendant  is  the  vicar  or  incumbent  of  the  said  church. 

3.  In  or  about  the  last  week  of  April,  1879,  the  defendant  falsely  and 
maliciously  spoke  and  published  to  one  Mr.  I.  J.  of  the  plaintiff  as  such 
verger  and  church  clerk  as  aforesaid,  and  with  reference  to  the  conduct  of 
the  plaintiff  in  such  office  of  verger  and  church  clerk  the  words  following  : 
—  "  Luke"  (meaning  the  plaintiff)  "has  broken  offertory  boxes  open  and 
taken  money  from  them,  and  has  also  taken  money  from  the  collecting 
plates  and  used  it  for  his  own  purposes,"  meaning  thereby  that  the  plaintiff 
had  feloniously  stolen  money  forming  part  of  contributions  for  sacred  and 
benevolent  purposes. 

4.  The  defendant  also,  about  the  same  time  as  mentioned  in  the  last 
paragraph,  with  the  like  meaning,  falsely  and  maliciously  spoke  and  pub- 
lished the  said  words  or  other  words  to  the  same  substance  and  effect  of  the 
plaintiff  in  relation  to  liis  conduct  in  the  said  office  to  Mrs.  0.  P.  and  to 
various  other  persons. 

5.  Through  the  said  false  and  malicious  statements  of  the  defendant  the 
plaintiff  has  been  greatly  injured  in  his  credit  and  reputation,  and  has  been 
by  the  churchwardens  of  the  said  parish  forbidden  to  perform  the  duties  of 
his  said  office  of  verger  and  church  clerk. 


541 


*  630  APPENDIX  A. 

No.  34. 
L.  V.  P. 

Statement  of  Defence. 

*  630         1.  The  defendant  denies  that  the  plaintiff  was  ever  church  *  clerk 

of  the  district  parish  church  of .     He  was  until  recently  verger 

and  organ-blower  at  the  said  church. 

2.  The  defendant  does  not  admit  that  he  ever  spoke  or  published  the 
words  complained  of,  or  any  other  words  to  the  same  substance  and  effect, 
as  alleged  in  paragraphs  3  and  4  of  the  statement  of  claim. 

3.  Throughout  the  month  of  April  and  the  early  part  of  May,  1879,  the 
defendant  was  suffering  from  acute  mania,  brought  on  by  overwork ;  he 
has  no  recollection  of  having  spoken  any  such  words  as  alleged  either  then 
or  at  any  other  time.  If,  however,  the  defendant  did  in  fact  utter  any 
such  words  (which  he  does  not  admit),  they  were  not  spoken  seriously  or 
maliciously,  but  solely  in  consequence,  and  under  the  influence  of  the  said 
mania.  There  is  and  was  no  foundation  whatever  for  any  such  charge  ;  ^ 
and  the  defendant  unreservedly  withdraws  all  imputation  on  the  plaintiff's 
character,  and  exceedingly  regrets  that  he  ever  spoke  the  said  words  (if  in 
fact  he  did  speak  them,  which  he  does  not  admit). 

4.  The  defendant  denies  the  allegations  contained  in  paragraph  5  of  the 
plaintiff's  statement  of  claim,  and  each  and  every  of  them.  If  the  church- 
wardens of  the  said  parish  have  forbidden  the  plaintiff  to  perform  the 
duties  of  verger  and  organ-blower  at  the  said  church  (which  the  defendant 
does  not  admit)  they  have  not  done  so  through  or  in  consequence  of  any 
words  uttered  by  the  defendant. 

5.  The  defendant  does  not  admit  that  he  is  under  any  liability  to  the 
plaintiff;  bat  he  brings  into  Court  the  sum  of  £10,  and  says  that  the  said 
sum  is  sufficient  to  satisfy  the  plaintiff's  claim. 


No.  35. 
L.  V.  P. 
Reply. 


1.  The  plaintiff  joins  issue  on  paragraphs  1,  2,  3,  and  4  of  the  state- 
ment of  defence,  except  so  far  as  any  part  of  the  statement  of  claim  is 
thereby  admitted. 

1  See  ante,  pp.  488-9. 

542 


PLEADINGS   IN   SLANDER.  *  631 

*  2.  As  to  paragraph.  5  of  the  statement  of  defence  the  plaintiff       631 
says  that  the  said  sum  of  £10  is  not  enough  to  satisfy  the  plaintiff's 
claim. 


No.  36. 

Words  defamatory  of  a  Trader  in  the  loay  of  his  Trade. 

Statement  of  Claim. 

1.  At  all  dates  hereinafter  mentioned  the  plaintiff  carried  on,  and  still 
carries  on,  the  trade  and  business  of  a at in  the  county  of . 

2.  On  or  about  the day  of ,  a.d. ,  the  defendant  falsely  and 

maliciously  spoke  and  published  of  the  plaintiff  in  relation  to  his  said  trade 
and  business  and  of  and  concerning  the  plaintiff's  mode  of  conducting  the 
same,  the  words  following,  that  is  to  say  :  —  [here  set  out  the  slander  verba- 
tim ;]  meaning  thereby  that  the  plaintiff  cheated  or  was  guilty  of  fraud- 
ulent conduct  in  his  said  trade  and  business.  [  Or,  meaning  thereby  that 
the  plaintiff  was  guilty  of  fraudulent  and  dishonest  practices  in  his  trade 
and  business,  and  was,  or  had  been,  insolvent  and  unable  to  pay  his  just 
debts.] 

3.  Whereby  the  plaintiff  was  injured  in  his  credit  and  reputation  as 

a ,  and  in  his  said  business  and  trade,  and  X.,  Y.,  and  Z.,  who  had 

heretofore  dealt  with  the  plaintiff  in  his  said  business,  ceased  to  deal  with 
him  [and  L.,  H.,  and  N.,  who  had  previously  supplied  the  plaintiff  with 
goods  on  credit,  thereupon  refused  to  sell  any  more  goods  to  the  plaintiff 
on  credit,  as  they  otherwise  would  have  done]. 

And  the  plaintiff  claims  £, . 


No.  37. 
Statement  of.  Defence. 


1.  The  defendant  denies  the  several  allegations  contained  in  paragraph  2 
of  the  statement  of  claim. 

*  2.  The  defendant  never  on  any  occasion  or  occasions  spoke  or       6o- 
published  of  the  plaintiff,  as  such  trader  or  otherwise,  all  or  any  of 
the  words  alleged  in  the  said  paragraph  to  have  been  spoken  by  the  de- 
fendant. 

3.  The  defendant  did  not  speak  or  publish  the  said  words  of  the  plain- 
tiff in  relation  to  his  trade  or  business,  or  of  or  concerning  his  mode  of 
conducting  the  same,  or  with  the  meaning  in  the  said  paragraph  imputed 
to  the  said  words,  or  in  any  other  defamatory  sense. 

543 


*  632  APPENDIX  A. 

4.  The  said  several  words,  without  the  said  alleged  meaning,  if  spoken 
and  published  by  the  defendant  at  all  (which  he  denies),  are  respectively 
true  in  substance  and  in  fact.     Particulars  are  delivered  herewith. 

5.  The  defendant  denies  the  several  allegations  contained  in  paragraph  3 
of  the  statement  of  claim. 

And  by  way  of  counter-claim,  the  defendant  says  :  — 

6.  That  heretofore,  and  before  the  publication  of  the  alleged  slander, 
the  plaintiff,  &c. 


No.  38. 

Slander  of  a  Builder  in  the  way  of  his  Trade. 

S.  V.  W. 

Statement  of  Claim. 

1.  The  plaintiff  is  a  builder  carrying  on  business  at  C ;  and  the 

defendant  is  a  mason,  and  was  employed  by  the  plaintiff  from  the  month 
of  October,  1878,  until  the  month  of  August,  1879,  when  he  left  the 
plaintiff's  employment. 

2.  After  the  defendant  had  left  the  plaintiffs  employment  he  made  a 

statement  to  the  Eev.  A.  B.,  the  vicar  of  C ,  concerning  the  plaintiff 

in  the  following  words  ;  —  "Whilst  he  (meaning  the  plaintiff)  was  doing 
the  work  at  Mrs.  M.'s  house  he  stole  the  hay  from  the  stack  there ;  John 
saw  him  cut  the  hay  from  the  stack  and  take  it  away  in  his  cart :  he  took 
two  loads  whilst  he  was  at  work  there." 

3.  The  defendant  also,  on  or  about  the  25th  day  of  August,  1879, 
*  C33  made  a  statement  to  Mrs.  M.  concerning  the  plaintiff  in  *  the  fol- 
lowing words  :  "  Whilst  he "  (meaniiig  the  plaintiff)  "  was  doing 
the  work  for  you,  he"  (meaning  the  plaintiff)  "stole  your  corn  and  hay, 
and  cut  and  took  away  in  his  cart  two  loads-  of  your  grass ; "  and  in  reply 
to  a  question  put  to  him  by  the  said  Mrs.  M.,  the  defendant  said  "he" 
(meaning  the  plaintiff)  "  got  up  into  the  loft  and  got  down  through  a  trap- 
door to  where  the  corn  was  kept  and  stole  it." 

4.  On  the  same  occasion  as  is  mentioned  in  the  preceding  paragraph  the 
defendant  made  the  further  statement  to  the  said  Mrs.  M.  of  and  concern- 
ing the  plaintiff:  "  Whilst  he  was  working  for  you  here,  he"  (meaning  the 
plaintiff)  "  stole  grass  and  corn  from  Mr.  N.,  and  he  and  Mr.  N.'s  gardener 
have  taken  baskets  upon  baskets  of  vegetables  from  Mr.  N.'s  garden; "  tlie 
defendant  meaning  that  the  plaintiff  had  induced  Mr.  N.'s  gardener  to  rob 
his  master  and  to  give  him  the  stolen  goods. 

5.  On  the  same  occasion  the  defendant  made  this  further  statement  to 
the  said  Mrs.  M.  of  and  concerning  the  plaintiff :  "  When  S.  (meaning  the 

544 


PLEADINGS  IN  SLANDEK.  *  633 

plaintiff)  was  making  that  drain  for  Mr.  N.  he  used  a  lot  of  rotten  old  pipes 
that  were  no  use ; "  meaning  thereby  that  the  plaintiff  had  been  guilty  of 
misconduct  in  his  trade  of  a  builder  and  had  cheated  the  said  Mr,  IS", 

6.  The  whole  of  the  said  statements  were  false,  and  were  false  to  the 
knowledge  of  the  defendant,  and  were  made  maliciously  with  intent  to  in- 
jure the  plaintiff. 

7.  By  reason  of  the  said  statements  the  plaintiff  has  suffered  loss  in  his 
trade  as  aforesaid,  and  has  lost  the  society  of  his  friends. 

The  plaintiff  claims  £50  damages. 


No.  39. 

S.  V.  W. 

Statement  of  Defence. 

1.  The  defendant  denies  that  he  spoke  or  published  the  words  set  out  in 
paragraphs  2,  3,  4,  and  5,  or  any  or  either  of  such  words. 

*  2.  The  defendant  was  employed  by  the  plaintiff  to  work  at  the  *  634 
house  of  the  Mrs.  M.  mentioned  in  the  statement  of  claim.  "Whilst 
he  was  so  employed,  certain  facts  came  to  his  knowledge  relative  to  the 
disposition  by  the  plaintiff  and  by  the  servants  of  the  said  Mrs.  M.  of  cer- 
tain portions  of  her  property.  It  thereupon  became  and  was  the  duty  of 
the  defendant  to  communicate  such  facts  to  the  said  Mrs.  M.,  and  to  her 
son-in-law,  the  Eev.  A.  B.,  the  vicar  of  C.^  And  the  defendant  says  that 
these  communications  are  the  alleged  slanders,  if  any,  and  that  the  same 
were  made  bond  fide  in  the  discharge  of  the  said  duty,  and  not  maliciously, 
nor  with  intent  to  injure  the  plaintiff,  and  were  and  are  therefore  privileged. 

3.  The  defendant  denies  that  he  spoke  or  published  the  words  set  out  in 
paragraph  5  of  the  statement  of  claim  with  the  meaning  therein  alleged,  or 
at  all  with  reference  to  the  plaintiff's  trade  of  a  builder,  or  in  any  defama- 
tory sense.  The  said  words  without  the  said  meaning,  and  according  to 
their  fair  and  ordinary  signification,  are  true  in  substance  and  in  fact. 

4.  The  defendant  does  not  admit  the  allegations  contained  in  paragraph 
7  of  the  statement  of  claim. 

1  A  bad  plea,  surely,  so  far  as  the  vicar  is  coucerned  :  no  facts  being  shown  which 
create  any  duty  to  inform  the  vicar. 

35  545 


*  634  APPENDIX  A. 

III.  PRECEDENTS  OF  PLEADINGS   IN  ACTIONS  FOR 
SLANDER  OF  TITLE. 

No.  40. 

Libel  on  goods  manufactured  and  sold  hy  another. 

Western  Counties  Manure  Co.  v.  Lawes  Chemical  Manure  Co.  (L.  E.  9  Ex. 
218;  43  L.  J.  Ex.  171 ;  23  W.  R.  5,  ante,  pp.  145,  148). 

Declaration. 

In  the  Exchequer  of  Pleas. 

The  3rd  day  of  February,  a.d.  1874. 

Devonshire  to  wit. 

The  Western  Counties  and  General  Manure  Co.,  Limited,  hy  William 
Harris,  their  attorney,  sue  the  Lawes  Chemical  Manure  Co.,  Lim- 

*  635    ited,  for  that  at  the  time  of  the  committing  of  *  the  grievances 

hereinafter  mentioned  the  plaintiffs  carried  on  business,  and  still  do 
carry  on  business,  as  amongst  other  things  manufacturers  of  and  sellers  of 
artificial  manures,  and  had  and  still  have  upon  sale  certain  artificial  ma- 
nures, and  the  plaintiffs  say  that  the  defendants  well  knowing  that  the 
plaintiS"s  were  carrying  on  the  aforesaid  business  and  selling  the  said  arti- 
ficial manures,  and  contriving  and  intending  to  injure  the  plaintiffs  in  their 
said  business,  falsely  and  maliciously  printed  and  published,  and  caused  to 
be  printed  and  published,  of  and  concerning  the  plaintiffs,  and  of  and  con- 
cerning them  as  such  manufacturers  and  sellers  of  artificial  manures,  and 
of  and  concerning  them  in  the  way  of  their  said  business,  the  words  fol- 
lowing^, that  is  to  say: — \For  the  toords  of  the  libel,  see  the  report  of  the 
case  ;1   meaning  thereby  that  the  said  artificial  manures  so  manufactured, 
sold  and  traded  in  by  the  plaintiffs  were  artificial  manures  of  an  inferior 
quality  to  the  said  other  artificial  manures,  and  especially  were  of  an  infe- 
rior quality  to  the  said  artificial  manures  of  the  defendants ;  whereas  in 
truth  and  in  fact  the   said  artificial  manures  so  manufactured,  sold  and 
traded  in  by  the  plaintiffs  were  not  of  an  inferior  quality  and  especially 
were  not  inferior  in  quality  to  the  said  artificial  manures  of  the  defendants 
as  the  defe7idants  ivell  knew  ;'^  and  by  reason  of  the  premises  certain  per- 
sons and  particularly  George  Snell  and  A.  Piowe  who  before  and  at  the 
time  of  the  committing  of  the  grievances  hereinbefore  mentioned  had  been 
used  to  buy  the  said  artificial  manures  so  manufactured,  sold  and  traded 
in  by  the  plaintiffs  ceased  to  do  so,  and  certain   other  persons  and  partic- 
ularly Geo.  May  and  Samuel  Harvey  Avho  would  have  bought  the  said 

1  The  words  in  italics  were  subsequently  struck  out  by  consent. 

546 


PLEADINGS  IN  SLANDER   OF  TITLE.  *  635 

artificial  manures  of  the  plaintiffs  were  induced  to  refrain  from  buyincr  the 
same;  whereby  the  plaintiffs  have  been  prejudiced  and  injured  in  their 
said  trade  and  business,  and  the  reputation  of  the  said  artificial  manures  so 
manufactured  by  the  plaintiffs  has  been  injured,  and  the  sale  thereof  has 
been  much  diminished  and  fallen  off,  and  the  plaintiffs  have  been  greatly 
injured  in  their  credit,  reputation  and  circumstances,  and  have  been  and 
are  thereby  prevented  from  acquiring  divers  great  gains  which  they  might 
and  otherwise  would  have  acquired. 

And  the  plaintiffs  claim  £2000. 


*No.  41.  •636 

Lawes  Chemical  Manure  Co.  ats.  Western  Counties  and  General  Manure  Co, 

Limited. 

Pleas. 

In  the  Exchequer  of  Pleas. 
The  23rd  day  of  February,  1874. 

1.  The  defendants  by  Arthur  P.  Bower  their  attorney  say  that  they  are 
not  guilty. 

2.  And  for  a  second  plea,  the  defendants  say  that  the  alleged  words  are 
true  in  substance  and  in  fact. 

3.  And  for  a  third  plea,  the  defendants  deny  the  allegations  in  the  dec- 
laration contained  that  the  said  artificial  manures  manufactured,  sold,  and 
traded  in  by  the  plaintiffs  were  not  inferior  in  quality  to  the  said  artificial 
manures  to  the  defendants'  knowledge,  as  alleged. 

Feb.  23,  1874. 

Order  by  Master  George  Pollock,  giving  the  defendants  leave  to  plead 
the  several  matters.  Plaintiffs  to  be  at  liberty  to  demur  to  the  third  plea. 
Particulars  of  the  second  plea  to  be  delivered  within  three  days. 


No.  42. 

Western,  dr.,  Co.  v.  Laives,  <fcc.,  Co. 

Eeplicatiox. 
Feb.  27,  1874. 

The  plaintiffs  join  issue  upon  all  the  defendants'  pleas. 
And  the  plaintiffs  say  that  the  defendants'  tliird  plea  is  bad  in  substance. 

547 


*  636  APPENDIX  A. 

[/ft  MarffiTi-l 

A  matter  of  law  intended  to  he  argued  is  that  the  defendants'  knowledge 
that  the  plaintiifs'  manures  were  not  inferior  to  their  own  is  immaterial, 
and  that  the  plea  is  therefore  no  answer  to  the  action. 


*  637  *  ^0.  43. 

Lawes,  &c.,  Co.  ats.  "Western,  &c.,  Co. 

Joinder  in  Demurrer. 
Feb.  28,  1874. 

The  defendants  say  that  the  said  third  plea  is  good  in  substance. 


No.  44. 

Points. 

The  following  are  the  points  intended  to  be  insisted  on  by  the  plaintiffs 
upon  the  argument  of  this  demurrer  :  — 

1.  "That  the  defendants'  third  plea  is  bad  in  substance. 

2.  That  the  defendants'  knowledge  that  the  plaintiffs'  manures  were  -not 
inferior  to  their  own  is  immaterial,  and  that  the  plea  is  therefore  no  answer 
to  the  action. 

3.  That  the  declaration  is  good  without  the  allegations  denied  in  the 
third  plea. 

Sub^quently  for  convenience  sake,  and  by  agreement  between  the  counsel  for  the 
parties  respectively,  the  plaintiffs  amended  their  pleadings  by  striking  out  the  averment 
"as  the  defendants  well  knew,"  and  the  defendants  withdrew  their  third  plea  and 
demurred  to  the  declaration  instead.  This  demurrer  was  decided  in  favor  of  the  plain- 
tiffs, and  the  case  was  subsequently  settled  without  going  to  trial.  A  Stet  Processus 
was  entered  on  October  9th,  1874. 


No.  45. 

In  the  Exchequer  of  Pleas. 

Between  the  "Western  Counties  and  General  Manure 

Co.,  Limited Plaintiffs. 

and 
Lawes  Chemical  Manure  Co.,  Limited       .         .         .     Defendants. 

Interrogatories  to  be  answered  by  the  secretary,  or  manager,  or 
*  638    some  other  person  on  behalf  of  the  defendants,  by  *  affidavit  in 
548 


PLEADINGS  IN   SLANDER   OF   TITLE.  *  638 

writing,  to  be  sworn  and  filed  in  the  ordinary  way  pursuant  to  the  order  of 
the  Hon. ,  dated  the day  of ,  a.d.  1874. 

1.  Was  one  W.  M.  W.  an  agent  or  servant,  or  in  the  employ  of  the  de- 
fendants in  or  about  the  month  of  Feb.,  1873,  for  the  sale  of  their  manures, 
or  for  any  other  purpose,  in  Plymouth  or  elsewhere,  in  the  county  of 
Devon,  or  in  the  county  of  Cornwall  ] 

2.  Was  any,  and  what,  inquiry  made  by  the  said  W.  i\I.  W.  of  J.  M., 
then  the  secretary  of  the  Devon  and  Cornwall  Chambers  of  Agriculture,  in 
or  about  the  month  of  Feb.,  1873,  respecting  certain  manures  sent  by 
the  said  J.  M.,  for  analysis,  to  Professor  A.  1  Was  the  said  inquiry,  if  any, 
made  by  the  express  authority  of  the  defendants,  or  would  it  have  been 
within  the  general  authority  of  the  said  W.  M.  W.  to  make  such  incpiiry  ? 
Did  the  said  J.  M.,  either  then  or  at  any  time,  give  any,  and  what,  ac- 
counts to  the  defendants  or  the  said  W.  M.  W.,  or  any  of  their  agents  or 
servants,  of  the  circumstances  under  which,  the  time  when,  the  place  where, 
and  the  person  or  persons  from  whom  he  had  procured  the  said  manures  or 
samples  of  manures  1 

3.  Were  the  said  manures,  or  samples  of  manures,  forwarded  to  Pro- 
fessor A.  by  the  authority  of  the  defendants,  or  their  agents  or  servants,  or 
which  of  them  ] 

4.  Was  the  said  J.  M.,  in  or  about  the  month  of  Feb.,  1873,  or  at  any 
other  and  what  time,  and  for  how  long,  and  where,  an  agent  or  servant  of, 
or  in  any  way  as  a  shareholder,  customer,  or  otherwise  connected  with  the 
defendants  ] 

5.  Did  the  defendants  receive,  in  or  about  the  month  of  Feb.,  1873,  or 
at  any  other  and  Avhat  time,  from  the  said  J.  M.,  an  analysis,  or  copy  of  an 
analysis,  made,  or  purporting  to  be  made,  by  Professor  A.  of  certain  man- 
ures, or  samples  of  manures  1  Did  the  said  J.  M.  give  to  the  defendants, 
their  agents,  or  servants,  any,  and  what,  account  of  the  time  when,  the  place 
where,  and  the  person  or  persons  from  whom  he  received,  or  became  pos- 
sessed of,  the  said  analysis  1 

6.  Were  the  manures  sold  or  manufactured  by  the  plaintiffs  among  the 
manures  so  analyzed,  or  purported  to  be  analyzed  1  Did  the  defendants 
print  or  circulate  the  said  analysis  1 

7.  Did  .the  defendants  send  a  copy  of  the  said  analysis  to  *  each    *  639 
or  any,  or  either  of  their  agents,  and  to  which  of  them  ]     Give  the 
names  and  addresses  of  the  said  agents. 

8.  Was  one  E.  E.,  in  or  about  the  month  of  Feb.,  1873,  or  at  any  other 
and  what  time,  an  agent  of,  or  in  any  way  as  a  shareholder  or  customer,  or 
otherwise,  connected  with  the  defendants  ?  Did  he,  by  the  authority  or 
with  the  sanction  of  the  defendants,  procure  from  the  plaintiffs,  in  or  about 
the  month  of  Dec,  1872,  or  when,  any  and  what  samples  of  their  manures'? 
What  was  done  with  the  samples,  if  any,  so  obtained  ] 

549 


*  639  APPENDIX  A. 

9.  Have  the  defendants  in  their  possession  or  power  any  of  the  manures 
or  samples,  or  portions  of  the  manures  or  samples  submitted  for  analysis  to 
Professor  A.  1 

10.  Formal  interrogatory  as  to  hooks,  letters,  documents,  &c. 


Xo.  46. 

Slander  of  Title  to  Goods. 

C.  V,  D. 

Statement  op  Claim. 

1.  The  plaintiff,  at  all  the  dates  hereinafter  mentioned,  carried  on  and 
still  carries  on,  the  trade  or  business  of  a  stonemason  and  contractor,  at 
,  in  tlie  county  of . 

2.  On  or  about  the day  of ,  1860,  the  plaintiff,  in  the  ordi- 
nary course  of  such  trade  and  business,  was  desirous  of  selling  certain  goods 
and  chattels  of  the  plaintiff's  mentioned  in  the  advertisement  herein- 
after stated.  He  therefore  caused  to  be  printed  an  advertisement,  of  which 
the  following  is  a  copy  :  —  "  To  be  sold  by  auction,  by  Mr.  F.  S.,  on  Mon- 
day and  Tuesday,  January  30th  and  31st,  1860,  at  the  above  works,  the 
whole  of  the  working  plant,  the  property  of  Mr.  E.  C,  consisting  of,  <kc. 
[TVic  advertisement  then  described  a  variety  of  articles,  waggons,  carts, 
sleepers,  planks,  and  sundry  other  effects."]  The  sale  to  commence  each  day 
at  twelve  o'clock.     Cotsgate  Hill,  Eipon,  January  the  19th,  1860." 

3.  Thereupon  the  defendant,  on  the  25th  day  of  January,  1860, 
*  640  falsely  and  maliciously  caused  to  be  printed  and  published  *  of  and 
concerning  the  plaintiff  and  of  and  concerning  the  said  intended 
sale  as  advertised,  the  false,  scandalous,  malicious  and  defamatory  libel  fol- 
lowing, that  is  to  say  :  —  [here  set  out  the  tvords  verbatim  ;]  thereby  meaning 
and  intending  to  cause  it  to  be  believed,  that  the  goods  named  in  the  said 
advertisement  were  the  property  of  the  defendant  and  not  of  the  plaintiff, 
and  that  no  person  could  safely  purchase  any  goods  to  be  exposed  for  sale 
at  the  said  advertised  sale. 

4.  There  is  and  was  no  foundation  or  pretence  for  the  claim  set  up  by  the 
defendant  in  the  said  libel,  as  he  the  defendant  then  well  knew;  and 
such  claim  was  made  malicioudy  and  without  any  reasonable  or  probable 
cause. 

5.  By  means  of  the  publication  of  the  said  libel,  divers  persons  who 
were  desirous  of  purchasing  the  said  goods  or  some  of  them,  and  who  Avould 
otherwise  have  attended  at  the  said  sale,  and  would  have  bidden  for,  and 
purchased  the  said  goods  or  the  greater  part  of  them,  particularly  X.,  Y. 

650 


PLEADINGS   IN   SLANDEE   OF   TITLE.  *  640 

and  Z.,  all  of in  the  said  county,  were  hindered  and  prevented  from 

attending  at  the  time  and  place  appointed  for  the  sale  by  the  said  adver- 
tisement, and  were  deterred  from  bidding  at  such  sale,  and  declined  to 
purchase  the  said  goods  or  any  part  thereof;  and  the  plaintiff  was  then 
prevented  from  putting  up  the  said  goods  and  chattels  for  sale,  and  became 
unable  to  procure  a  fair  and  reasonable  price  for  the  same,  and  tlie  said  in- 
tended sale  failed  altogether ;  and  the  expenses  incurred  by  the  plaintiH"  in 
and  about  preparing  for  the  said  intended  sale  produced  no  advantageous 
result  to  the  plaintiff;  and  the  plaintiff  was  otherwise  much  injured  and 
damnified. 

And  the  plaintiff  claims,  &c. 


No.  47. 

C.  V.  D. 

Statement  of  Defence. 


1.  The  defendant  admits  that  the  plaintiff  caused  to  be  printed  the  ad- 
vertisement set  out  in  paragraph  2  of  the  plaintiff's  statement  of 

claim ;  but  denies  that  the  goods  mentioned  in  *  such  advertisement    *  641 
were  the  property  of  the  plaintiff,  and  that  the  intended  sale  by 
auction  was  in  the  ordinary  course  of  the  plaintiff's  trade  and  business. 

2.  The  defendant  admits  that  he  caused  to  be  printed  and  published  the 
words  set  out  in  paragraph  3  of  the  plaintiff's  statement  of  claim  ;  but 
denies  that  he  did  so  falsely  or  maliciously,  or  with  the  meaning  in  such 
paragraph  alleged. 

3.  Before,  and  at  the  time  of  the  publication  complained  of,  the  plaintiff 
had  unlawfully  detained,  and  Avas  unlawfully  detaining,  from  the  defend- 
ant certain  timber,  carts,  rails,  plant,  materials,  and  sundry  other  effects, 
the  property  of  the  defendant.  The  defendant  was  informed  and  believed 
that  the  plaintiff  intended  to  dispose  of  the  same  (among  other  things)  at 
the  said  intended  sale  by  auction.  "Wherefore  the  defendant  printed  and 
published  the  said  words  for  the  purpose  of  warning  all  persons  from 
purchasing  the  said  goods  and  chattels  so  unlawfully  detained  by  the  plain- 
tiff as  aforesaid,  and  in  the  bond  fide  belief  that  such  warning  Avas  neces- 
sary for  the  protection  of  the  defendant's  own  property,  and  without  any 
malice  towards  the  plaintiff. 

4.  The  defendant  does  not  admit  the  allegations  contained  in  paragraphs 
4  and  5  of  the  statement  of  claim,  or  any  of  them. 

See  Carr  v.  Duckett,  5  H.  &  N.  783 ;  29  L.  J.  Ex.  468,  as  to  paragraph  3. 

551 


*641  APPENDIX  A. 

No.  48. 
Libel  in  the  nature  of  Slander  of  Title. 

HaH  and  another  v.  Wall  (2  C.  P.  D.  146;  46  L.  J.  C.  P.  227;  25  W.  R 

373). 

Statement  of  Claim. 

1.  The  plaintiflfs  were  at  the  times  hereinafter  mentioned,  and  still  are, 
vocalists,  and  had  been  and  were  engaged  to  sing  at  the  "  Sun  Music  Hall, 
Knightsbridge,"  and  also  at  the  "  London  Pavilion  Music  Hall,"  for  reward 
payable  to  the  plaintiffs  for  their  services,  and  they  appeared  and  sang  in 

public  under  the  name  of  "  The  Sisters  Hartridge." 
*  642  *  2.  On  the  15th  of  January,  1876,  the  defendant  falsely  and 
maliciously  wrote  and  published  of  the  plaintiffs,  in  the  form  of  a 
letter  addressed  to  E.  Williams,  Esq.,  the  proprietor  of  the  "  Sun  Music 
Hall,"  of  the  plaintiflfs  and  of  them  as  such  vocalists,  and  of  their  engage- 
ment at  the  "  Sun  Music  Hall,"  the  words  following ;  that  is  to  say  :  — 
"January  1.5th,  1876.  E.  Williams,  Esq.  My  dear  Sir,  —  Although  I 
know  it  is  quite  unintentional  on  the  part  of  the  lady  advertisers  (meaning 
the  plaintiflfs),  the  advertisement  attached  at  foot,  if  relied  upon  in  every 
particular  by  proprietors  engaging  them,  is  calculated  to  lead  such  propri- 
etors to  incur  the  penalties  under  the  Copyright  Act  in  certain  cases,  as  I 
hold  the  power  of  attorney  over  the  performing  rights  of  certain  musical 
publications  belonging  to  two  houses  therein  named,  who  only  have  the 
copyrights  vested  in  them,  and  a  separate  and  distinct  property  never  held 
by  them.  If  all  proprietors  knew  this,  it  would  be  best ;  but  I  have  not 
time  to  apprise  them.  I  remain,  yours  truly,  H.  Wall ; "  meaning  that 
the  plaintiflfs  had  no  riglit  to  sing  certain  songs  which  they  advertised 
themselves  as  about  to  sing  at  the  said  music  hall. 

3.  In  consequence  thereof,  and  by  the  pubUcation  of  the  said  words,  E. 
Williams  dismissed  the  plaintiflfs  from  his  service  and  terminated  the  said 
engagement  at  the  "  Sun  Music  Hall." 

4.  On  the  19th  of  January,  1876,  the  defendant  falsely  and  maliciously 
wrote  and  published  of  the  plaintiflfs,  in  the  form  of  a  letter  addressed  to 
E.  Loibl,  Esq.,  the  proprietor  of  the  "  Pavilion  Music  Hall,"  of  the  plain- 
tiflfs, and  of  them  as  such  vocalists,  and  their  engagements  at  the  said  music 
hall,  the  Avords  following;  that  is  to  say:  —  "January  19th,  1876.  E. 
Loibl,  Esq.  Dear  Sir,^» — That  you  may  not  be  misled,  I  beg  to  state,  that, 
with  reference  to  an  advertisement  in  the  last  Era,  where  the  Misses  Hart- 
ridge (meaning  the  plaintiflfs)  give  notice  that  they  have  received  unhesi- 
tating permission  to  perform  any  morceaux  from  any  publication  of  certain 
publishers  therein  mentioned,  it  would  be  as  well  for  you  to  know  that,  if 
two  of  the  firms  really  had  pretended  to  have  given  such  unqualified  sanc- 

552 


PLEADINGS  EST  SLANDER   OF  TITLE.  *  642 

tioii,  that  I  hold  powers  of  attorney  over  certain  publications  issued  hy 
them  as  to  the  sole  liberty  of  public  performance,  which  right 
they  never  possessed.  But  *  Messrs.  Chappell  &  Co.'s  representa-  *  643 
tive  to-day  informed  me  that  they  only  granted  permission  for  two 
songs  in  particular  (which  were  named),  and  they  were  not  aware  it  was 
for  music  hall  singing,  as  they  have  a  poor  opinion  of  such  creating  any 
demand  for  their  publications ;  and  moreover  that  they  require  the  adver- 
tisement to  be  altered.  And  Messrs.  Metzler  &  Co.'s  representative,  in 
the  presence  and  hearing  of  Mr.  Brown  (the  head  man  of  Mr.  Cunningham- 
Boozey)  yesterday  stated  to  me  that  he  had  granted  no  permission  what- 
ever, but,  on  the  contrary  that  they  had  informed  the  ladies  (meaning  the 
plaintiffs)  that  their  charge  for  such  permission  would  be  7s.  per  night 
{21.  2s.  per  week),  as  much  again  as  Messrs.  Boosey  named,"  (meaning  that 
the  plaintiffs  had  advertised  themselves  to  sing  at  the  said  music  hall 
songs  which  they  had  no  right  to  sing). 

5.  In  consequence  of  the  publication  of  these  words  E.  Loibl  dismissed 
the  plaintiffs  from  his  service,  and  dispensed  with  their  services,  and  refused 
to  employ  them  to  sing  at  the  said  music  hall ;  and  the  plaintiffs  were,  and 
are,  by  means  of  the  premises,  otherwise  injured. 

And  the  plaintiffs  claim  100^.  damages. 


1^0.  49. 
Statement  of  Defence. 

1.  The  defendant  denies  the  whole  of  the  allegations  contained  in  the 
first  paragraph  of  the  statement  of  claim. 

2.  The  defendant  denies  the  allegations  contained  in  paragraphs  2,  3,  4, 
and  5  of  the  said  statement  of  claim. 

3.  The  defendant  further  denies  that  the  alleged  libels,  and  each  of 
them  as  disclosed  in  paragraphs  2  and  4  respectively,  were  written  and 
published  as  therein  alleged. 

4.  The  defendant  further  says  that  the  alleged  libels  and  each  or  either 
of  them  were  privileged  communications  written  by  the  defendant  under 
the  protection  of  privilege.'' 

*  5.  The  defendant  further  says  that  the  alleged  libels,  and  each^  *  644 
or  either  of  them,  and  each  and  certain  part  or  parts  thereof,  were 
true  in  substance  and  in  fact. 

Eeply. 

The  plaintiffs  join  issue  with  the  defendant  upon  his  statement  of 
defence. 

1  This  paragraph  would  now  be  deemed  an  insufficient  plea  of  privilege,  see  ante, 
P-  484.  —  553 


»  644  APPENDIX  A. 


IV.  FORMS  OF  PLEADINGS,  NOTICES,  ETC.,  IN  THE 
COUNTY  COURT. 

No.  50. 

Statement  of  Plaintifs   Cause  of  Action   in   Actions  of  Libel  or   Slander 
remitted  for  trial  in  a  County  Court. 

In  the  County  Court  of ,  holden  at 


Between  A.  B PlaintiflF, 

.  and  \address  and  description], 

C.  D Defendant, 

[address  and  description']. 
Being  an  action  of  libel  [or  slander]  commenced  in  Her  Majesty's  High 

Court  of  Justice,  and  remitted  by  order  of  Master  ,  under  section  10 

of  "  The  County  Courts  Act,  1867,"  to  be  tried  in  this  Court. 

Libel. 

This  action  is  brought :  — 

For  that  the  defendant  falsely  and  maliciously  wrote  and  published  of 
and  concerning  the  plaintiff  the  words  following  :  "  he  is  a  liar,  a  black- 
guard, a7id  a  scoundrel ;  "  and  the  plaintiif  claims  £200  damages. 

Libel  in  the  way  of  Trade. 

Or,  For  that  the  defendant  falsely  and  maliciously  caused  to  be  printed 
and  published  of  and  concerning  the  plaintiff  in  the  way  of  his  trade  as  a 
grocer,  the  words  following  :  "  Mr.  A.  B.  sands  his  sugar  and  dusts  his  pep- 
per," whereby  the  plaintiff  was  injured  in  his  trade,  and  lost  the  custom  of 
several  persons,  particularly  X.,  Y.,  and  Z.,  who  had  before  dealt  at  the 
plaintiff's  shop  ;  and  the  plaintiff  claims  £50  damages. 

Slander. 

Or,  For  that  the  defendant  falsely  and  maliciously  spoke  and 
*  645    *  published  of  and  concerning  the  plaintiff  the  words  following  :  — 
"  A.  B.  is  a  thief,  and  stole  Mrs.  Brown's  ducks  ;  "  and  the  plaintiff 
claims  £30  damages. 

Slander  in  the  way  of  Trade, 

Or,  For  that  the  defendant  falsely  and  maliciously  spoke  and  published 

of  and  concerning  the  plaintiff,  in  the  way  of  his  business  and  calling  as  a 

ratcatcher,  the  words  following:  ''A.  B.  is  a  great  rogue,  and  instead  of 

doing  his  best  to  kill  the  rats  he  encourages  the  breed,  so  that  he  may  have 

654 


COUNTY  COURT  FORMS,  ETC.  *  G45 

more  employment  from  the  farmers,""  Avhereby  the  plaintiff  was  injured  in 
his  business,  and  several  farmers,  particularly  X.,  Y.,  and  Z.,  who  had 
usually  employed  him  to  kUl  the  rats  on  their  farms,  ceased  to  do  so  j  and 
the  plaintiff  claims  £20  damages. 

Above  is  the  statement  of  the  plaintiff's  cause  of  action. 

Dated  this day  of ,  18  — . 

A.  B.,  plaintiff, 

or 
E.  F.,  plaintiffs  solicitor. 
To  the  registrar  of  the  Court, 
and  to  the  defendant. 

[N.B.  —  The  above  forms  are  only  given  as  examples  ;  and  the  statement  of  the  plain- 
tifs  cause  of  action  must  in  all  cases  be  according  to  the  facts,  and  be  as  concise  as  pos- 
sible.] 


Ko.  51. 

r 

Notice  of  Trial  of  Action  of  Libel  or  Slander  remitted  for  trial  in  a  County 

Court. 

Being  an  action  of  libel  \or  slander]  commenced  in  her  Majesty's  High 

Court  of  Justice,  and  remitted  by  order  of  Master ,  under  section  10 

of  "  The  County  Courts  Act,  1867,"  to  be  tried  in  this  Court. 

Take  notice  that  this  action  will  be  tried  at  a  court  to  be  holden  on  the 
day  of ,  at  —  o'clock  in  the  forenoon. 

{N.B.  —  To  the  notice  sent  to  the  defendant  the  registrar  must  amiez  a  copy  of  the 
statement  of  tlie  plaiiUiff' s  cause  of  action.] 


*  No.  52.  *  646 

Affidavit  for  leave  to  administer  Interrogatories. 

We,  A.  B.,  of ,  the  above-named  plaintiff  [or  defendant],  and  L.  M., 

of ,  solicitor  in  this  cause  for  the  said  plaintiff  [or  defendant],  make 

oath,  and  say,  first  :  — 

And  I,  the  said  A.  B.,  for  myself  say  :  — 

1.  That  I  believe  that  I  shall  derive  material  benefit  in  this  cause  from 
the  discovery  which  I  seek  by  the  interrogatories  which  I  require  to  be  de- 
livered herein. 

2.  That  I  believed  that  I  have  a  good  cause  of  [or  defence  to  this]  action 
on  the  merits. 

655 


*  646  APPENDIX  A. 

And  I,  the  said  L,  M.,  say  :  — 

3.  That  the  plaintiff  [or  defendant]  will  derive  material  benefit  by  the 
discovery  which  he  seeks  by  interrogatories. 

4.  That  I  believe  that  the  plaintiff  [or  defendant]  has  a  good  cause  of 
[or  defence  to  this]  action  on  the  merits. 


Ko.  53. 
Notice  of  Set-off  and  Counterclaim. 

Take  notice,  that  the  defendant  intends  at  the  hearing  of  this  cause  to 
claim  a  set-off  and  to  counterclaim  against  the  plaintiff's  demand,  the  par- 
ticulars of  which  set-off  or  counterclaim  are  annexed  hereto. 

Dated  this day  of ,18  —  . 

The  defendant  [or  defendant's  solicitor]. 

To  the  registrar  of  the  Court. 

[N.B.  —  TJie  registrar  is  to  annex  to  this  notice  the  particulars  of  set-off  and  counter- 
claim, asfurnislied  by  defendant,  sealed  with  tlie  seal  of  the  Cffu,rt.\ 


No.  54. 

Notice  of  Special  Defence. 

*  647        Take  notice  that  the  defendant  intends  at  the  hearing  of  *  this 
cause  to  give  in  evidence,  and  rely  upon  the  following  ground  of 
defence. 

Dated  this day  of ,18  — . 

The  defendant  [or  defendant's  solicitor]. 
To  the  registrar  of  the  Court. 

Coverture. 

That  the  defendant  is  now  [or  that  she  was,  at  the  time  when  the  sup- 
posed claim  arose,  or  the  supposed  contract  or  agreement  was  made],  the 

■^ife  of ,  of .     And  that  she  was  married  to  him  at ,  in  the 

county  of ,  on  the day  of ,  and  that  she  resides  at ,  in 

the  county  of . 

Statute  of  Limitations. 

That  the  claim  for  which  the  defendant  is  summoned  is  barred  by  a 
Statute  of  Limitation. 
656 


COUNTY  COUET  FOKMS,  ETC.  *  647 

Justification. 

That  the  libel  [or  slander]  complained  of  is  true  in  substance  and  in 
fact. 

\N'.B. Notices  of  Special  Defence,  in  cases  commenced  in  a  Superior  Court,  aiid  sent 

to  the  County  Court  for  trial  under  section  10  of  30  «£•  31  Fict.  c.  142,  must  have,  in 
additim  to  the  usual  heading,  tfie  heading  of  Form  No.  50.] 


No.  55. 

Notice  to  be  ffiven  hy  Defendant  wider  6^7  Vict.  c.  96,  s.  1,  in  an  Action  for 

Libel  or  Slander  remitted  for  trial  in  a  County  Court. 

Being  an  action  for  libel  \or  slander]  commenced  in  her  Majesty's  High 

Court  of  Justice,  and  remitted  by  order  of  Master under  section  10  of 

"The  County  Courts  Act,  1867,"  to  be  tried  before  this  Court. 

Take  notice,  that  the  defendant  on  the  trial  of  this  action  will  give  in 
evidence  in  mitigation  of  damages  that  he  made  \or  offered]  an  apology  to 
the  plaintiff  for  the  libel  [or  slander]   complained   of  before  the 
commencement  of  the  action  \or  as  *  soon  after  the  commencement    *  648 
of  the  action  as  he  had  an  opportunity  of  doing  so]. 

To  the  registrar  of  the  Court 
and  to  the  plaintiff. 


No.  56. 

Notice  to  he  given  by  Defendant  under  6  ^^  7  Vict.  c.  96,  s.  2,  in  an  Action  for 
Libel  remitted  for  trial  in  a  County  Court. 

Being  an  action  for  libel  commenced  in  her  Majesty's  High  Court  of 

Justice,  and  remitted  by  order  of  Master under  section  10   of  "The 

County  Courts  Act,  1867,"  to  be  tried  before  this  Court. 

Take  notice,  that  the  defendant  on  the  trial  of  this  action  will  give  in 
evidence  and  rely  upon  the  following  ground  of  defence ;  (that  is  to  say,) 

That  the  libel  was  inserted  in  the  newspaper  called  or  known  by  the 

name  of ,  without  actual  malice  and  without  gross  negligence,  and 

that  before  the  commencement  of  the  action  \or  as  soon  after  the  com- 
mencement of  the  action  as  he  had  an  opportunity  of  doing  so]  the  defend- 
ant inserted  in  the  said  newspaper  [or  offered  to  publish  in  any  newspaper 
or  periodical  publication  to  be  selected  by  the  plaintiff]  a  full  apology  for 

the  said  libel,  and  that  the  defendant  has  paid  into  Court  £ by  way 

557 


*648  APPENDIX  A. 

of  amends  for  the  injury  sustained  "by  the  plaintiif  by  the  puhlication  of 
the  said  libel. 

Dated  this day  of ,  18  — . 

O.  D.,  defendant, 

or 
E.  F.,  defendant's  solicitor. 
To  the  registrar  of  the  Court 
and  to  the  plaintiff. 

[N.B.  — Iftlie  libel  was  published  in  any  periodical  pubiicaiion  other  than  a  news- 
paper, alter  the  notice  accordingly.  ] 


*649  *V.  PRECEDENTS  OF  CRIMINAL  PLEADINGS. 

No.  57. 

Information  for  a  Libel  on  a  Private  Individual. 

K.  V.  Newman,  1  E.  &  B.  2G8,  558;  22  L.  J.  Q.  B.  156;  17  Jur.  617; 
3  C.  &  K.  252 ;  Dears.  C.  C.  85. 

In  the  Queen's  Bench. 

Michaelmas  Term,  15  Yiet.,  a.d.  1851. 
Middlesex  to  wit. 

Be  it  remembered,  that  C.  F.  Robinson,  Esq.,  coroner  and  attorney  of 
our  Lady  the  Queen  in  the  Court  of  Queen's  Bench,  who  prosecutes  for  our 
.said  Lady  the  Queen  in  this  behalf,  comes  here  into  the  said  Court  at 
Westminster,  the  21st  day  of  November,  in  the  fifteenth  year  of  the  reign  of 
Dur  said  Lady,  and  gives  the  Court  to  understand  and  be  informed  that 
John  Henry  Newman,  doctor  of  divinity,  late  of  the  parish  of  Aston,  in 
the  county  of  Warwick,  contriving  and  wickedly  and  maliciously  intend- 
ing to  injure  and  vilify  one  Giovanni  Giacinto  Achilli,  and  to  bring  him 
into  great  contempt,  scandal,  infamy,  and  disgrace,  on  the  1st  of  October, 
A.D.  1851,  did  falsely  and  maliciously  compose  and  publish  a  certain  false, 
scandalous,  malicious  and  defamatory  libel,  containing  divers  false,  scan- 
dalous, malicious,  and  defamatory  matters  concerning  the  said  Giovanni 
Giacinto  Achilli,  that  is  to  say  :  —  [^Here  folloivs  the  libel,  set  out  verbatim 
with  the  necessary  innuendoes.']  Which  said  false,  scandalous,  malicious, 
and  defamatory  libel,  the  said  John  Henry  Newman  did  then  publish  to 
the  great  damage,  scandal,  and  disgrace  of  the  said  Giovanni  Giacinto 
Achilli,  in  contempt  of  our  said  Lady  the  Queen,  to  the  evil  and  pernicious 
example  of  all  others  in  like  case  offending  and  against  the  peace  of  our 
said  Lady  the  Queen,  her  crown  and  dignity.  Whereupon  the  said  coro- 
558 


CRIMINAL  PLEADINGS.  *  649 

ner  and  attorney  of  our  said  Lady  the  Queen,  who  for  our  said  Lady  the 
Queen  in  this  behalf  prosecuteth,  prayeth  the  consideration  of  the  Court 
here  in  the  premises,  and  that  due  process  of  law  may  be  awarded  against 
the  said  John  Henry  Newman  in  this  behalf  to  make  him  answer  to  our 
said  Lady  the  Queen  touching  and  concerning  the  premises  aforesaid. 


*No.  58.  *650 

Pleas  to  the  above  Information} 

In  the  Queen's  Bench. 

Michaelmas  Term,  15  Vict.,  a.d.  185L 

L  And  the  said  John  Henry  Newman  appears  here  in  Court  by  Henry 
Lewin,  his  attorney,  and  the  said  information  is  read  to  him,  which  being 
by  him  heard  and  understood,  he  complains  to  have  been  grievously  vexed 
and  molested  under  color  of  the  premises,  and  the  less  justly  because  he 
saith  that  he  is  Not  Guilty  of  the  said  supposed  offences  in  the  said  infor- 
mation alleged,  &c. 

2.  And  for  a  further  plea,  the  said  John  Henry  Newman  saith  that  be- 
fore the  composing  and  publishing  of  the  said  alleged  libel,  to  wit,  on  the 
1st  of  January,  1830,  &c.  :  [Here  follow  facts  showing  the  truth  of  the  mat- 
ters charged.']  And  so  the  said  John  Henry  Newman  says  that  the  said 
alleged  libel  consists  of  allegations  true  in  substance  and  in  fact,  and  of  favr 
and  reasonable  comments  thereon. 

And  the  said  John  Henry  Newman  further  saith,  that  at  the  time  of  pub- 
lishing the  said  alleged  libel,  it  was  for  the  public  benefit  that  the  matters 
therein  contained  should  be  published,  because,  he  says,  that  great  excite- 
ment prevailed  and  numerous  public  discussions  had  been  held  in  divers 
places  in  England  on  divers  matters  of  controversy  between  the  churches 
of  England  and  Eome,  with  respect  to  which  it  was  important  the  truth 
should  be  known  ;  and  inasmuch  as  the  said  G.  G.  Achilli  took  a  prominent 
part  in  such  discussions,  and  his  opinion  and  testimony  were  by  many  per- 
sons appealed  to  and  relied  on  as  of  a  person  of  character  and  respectability, 
with  reference  to  the  matters  in  controversy,  it  was  necessary  for  the  pur- 
pose of  more  effectually  examining  and  ascertaining  the  truth,  that  the  mat- 
ters in  the  said  alleged  libel  should  be  publicly  known,  in  order  that  it 
might  more  fully  appear  that  the  opinion  and  testimony  of  the  said 
G.  G.  Achilli  were  not  deserving  of  credit  or  *  consideration  by    *  651 

1  The  pleas  originally  filed  were  demurred  to,  and  amended  ;  the  amended  pleas 
were  again  demurred  to,  as  being  too  general  in  their  statements,  and  were  then  al- 
tered to  the  above  form. 

559 


*  651  APPENDIX  A. 

reason  of  liis  previous  misconduct :  [Here  follow  other  facts  showing 
that  it  ivas  for  the  public  benefit  that  t/ie  said  matters  charged  should  be  pub- 
lished  .]     And  so  the  said  John  Henry  Newman  says  he  published 

the  said  alleged  libel  as  he  lawfully  might  for  the  causes  aforesaid,  and  this 
the  said  John  Henry  Newman  is  ready  to  verify.  "Wherefore  he  prays 
judgment,  &c. 


No.  59. 
Eeplication. 


Hilary  Term,  16  Vict.,  1852. 

The  said  C.  F.  Eobinson,  Esq.,  coroner  and  attorney  of  our  said  Lady 
the  Queen,  in  the  Court  of  Queen's  Bench,  who  prosecutes  for  our  Lady 
the  Queen  as  to  the  plea  first  pleaded,  puts  himself  upon  the  country,  and 
as  to  the  plea  secondly  pleaded,  saith  that  the  said  J.  H.  Newman  of  his 
own  wrong  and  without  the  cause  in  his  said  plea  alleged,  composed,  and 
published  the  said  libel  as  in  the  said  information  alleged,  &c. 

Issue  joined,  Hilary  term,  16  Vict.,  1852. 


No.   60. 

Information  ex  officio  for  a  Seditious  Libel. 

E.  V.  John  Home,  clerk  (afterwards  John  Home  Tooke),  Cowp.  672;  11 
St.  Tr.  264 ;  20  How.  St.  Tr.  651. 

Michaelmas  Term,  17  Geo.  III.  a.d.  1776. 
London  to  wit. 

Be  it  remembered.  That  Edward  Thurlow,  Esq.,  attorney-general  of 
our  present  sovereign  Lord  the  King,  who  for  our  said  present  sovereign 
Lord  the  King  prosecutes  in  this  behalf,  in  his  proper  person  comes  into 
the  Court  of  our  said  present  sovereign  Lord  the  King  before  the  King 
himself,  at  Westminster  in  the  county  of  Middlesex,  on  Thursday  next 

after  fifteen  days  from  the  day  of  St.  Martin  in  this  same  term,  and 
*  652    *for  our  said  Lord  the  King  giveth  the  Court  here  to  understand 

and  be  informed,  that  John  Home,  late  of  London,  clerk,  being  a 
wicked,  malicious,  seditious,  and  ill-disposed  person,  and  being  greatly  dis- 
affected to  our  said  present  sovereign  Lord  the  King,  and  to  his  adminis- 
tration of  the  government  of  this  kingdom,  and  the  dominions  thereunto 
belonging,  and  wickedly,  maliciously,  and  seditiously  intending,  devising, 
560 


CEIMINAL  PLEADINGS.  *  652 

and  contriving  to  stir  up  and  excite  discontents  and  seditions  among  His 
Majesty's  subjects,  and  to  alienate  and  withdraw  the  affection,  fidelity,  and 
allegiance  of  His  said  Majesty's  subjects  from  His  said  Majesty,  and  to  in- 
sinuate and  cause  it  to  be  believed  tliat  divers  of  His  Majesty's  innocent 
and  deserving  subjects  had  been  inhumanly  murdered  by  His  said  Majes- 
ty's troops  in  the  province,  colony,  or  plantation  of  the  Massachusetts-Bay, 
in  ^e\v  England,  in  America,  belonging  to  the  crown  of  Great  Britain,  and 
unlawfully  and  wickedly  to  seduce  and  encourage  His  said  Majesty's  sub- 
jects in  tlie  said  province,  colony,  or  plantation,  to  resist  and  oppose  His 
Majesty's  government,  on  the  8th  day  of  June,  in  the  15th  year  of  the 
reign  of  our  present  sovereign  Lord  George  the  Third,  &c.,  with  force  and 
arms  at  London  aforesaid,  in  the  parish  of  St.  Mary-le-Bow,  in  the  ward  of 
Cheap,  wickedly,  maliciously  and  seditiously,  did  write  and  publish,  and 
cause  and  procure  to  be  written  and  published,  a  certain  false,  wicked, 
malicious,  scandalous  and  seditious  libel,  of  and  concerning  His  said  Maj- 
esty's government,  and  the  employment  of  His  troops,  according  to  the 
tenor  and  effect  following :"  A'u^^'s  Arms  Tavern,  Cornhill,  June  1th,  1775. 
At  a  special  meeting  this  day  of  several  members  of  the  Constitutional  So- 
ciety, during  an  adjournment,  a  gentleinun  proposed,  that  a  subscription 
should  be  immediately  entered  into  (by  such  of  the  members  present  who 
might  approve  the  purpose),  for  raising  the  sum  of  £100  —  to  be  applied 
to  the  relief  of  the  widows,  orphans,  and  aged  parents  of  our  beloved 
American  fellow  subjects,  who,  faithful  to  the  character  of  Englishmen, 
preferring  death  to  slavery,  were,  for  that  reason  only,  inhumanly  mur- 
dered by  the  King's  (meaning  His  said  Majesty's)  troops,  at  or  near 
Lexington  and  Concord,  in  the  province  of  Massachusetts  (meaning  the 
said  province,  colony,  or  plantation  of  the  Massachusetts-Bay,  in  Kew 
England,  in  America)  on  the  19th  of  last  April;  Avhich  sum  being 
immediately  *  collected,  it  was  thereupon  resolved,  that  Mr.  Home  *  653 
(meaning  himself  the  said  John  Home)  do  pay  to-morrow  into  the 
hands  of  Messieurs  Brownes  and  Collison,  on  the  account  of  Dr.  Franklin, 
the  said  sum  of  £100,  and  that  Dr.  Franklin  be  requested  to  apply  the 
same  to  the  above-mentioned  purpose.  —  John  Home  "  (meaning  himself 
the  said  John  Home)  in  contempt  of  our  said  Lord  the  King,  in  open  vio- 
lation of  the  laws  of  this  kingdom,  to  the  evil  and  pernicious  example  of  all 
others  in  the  like  case  offending,  and  also  against  the  peace  of  our  said 
present  sovereign  Lord  the  King,  his  crown  and  dignity.  \Then  follow 
several  counts  for  the  several  imhlications  of  the  same  libel  in  the  various 
newspapers.^ 

And  the  said  attorney-general  of  our  said  Lord  the  King  for  our  said 
Lord  the  King  further  gives  the  Court  here  to  understand  and  be  informed 
that  the  said  John  Home,  being  such  person  as  aforesaid,  and  again  un- 
lawfully, wickedly,  maliciously,  and  seditiously  iutendin.cc,   devising,  and 

36  .  561 


*  653  APPENDIX  A. 

contriving  as  aforesaid,  afterwards,  to  wit,  on  the  1 4th  day  of  July,  in  the 
15th  year  aforesaid,  with  force  and  arms  at  London  aforesaid,  in  the  parish 
and  ward  aforesaid,  wickedly,  maliciously,  and  seditiously  did  write  and 
publish,  and  cause  and  procure  to  be  written  and  published,  a  certain  false, 
wicked,  malicious,  scandalous,  and  seditious  libel,  of  and  concerning  His 
said  Majesty's  government,  and  the  emphjyment  of  His  troops,  according 
to  the  tenor  and  eifect  following  :  "  I  (meaning  himself  the  said  John 
Home)  think  it  proper  to  give  the  unknown  contributor  this  notice,  that  I 
(again  meaning  himself  the  said  John  Home)  did  yesterday  pay  to  Messrs. 
Brownes  and  Collison,  on  the  account  of  Dr.  Franklin,  the  sum  of  £50 
and  that  I  (again  meaning  himself  the  said  John  Home)  will  write  to  Dr. 
Franklin,  requesting  him  to  apply  the  same  to  the  relief  of  the  widows, 
orphans,  and  aged  parents  of  our  beloved  American  fellow  subjects,  who, 
faithful  to  the  character  of  Englishmen,  preferring  death  to  slavery,  were 
(for  that  reason  only)  inhumanly  murdered  by  the  King's  (meaning  His  said 
Majesty's)  troops,  at  or  near  Lexington  and  Concord,  in  the  province  of 
Massachusetts  (meaning  the  said  province,  colony,  or  plantation  of  the 
Massachusetts-Bay  in  New  England  in  America)  on  the  19th  of  April 
last,  —  John  Horne  "  (again  meaning  himself  the  said  John  Home) 

*  654    ii^  contempt  of  our  said  Lord  the  *  King,  in  open  violation  of  the 

laws  of  this  kingdom,  to  the  evil  and  pernicious  example  of  all 
others  in  the  like  case  offending,  and  also  against  the  peace  of  our  said 
present  sovereign  Lord  the  King,  his  crown,  and  dignity.  [T/mi  folloio 
other  counts  for  other  puhlicaf ions  of  the  same  libel.  Whereupon  the  said 
attorney-general  of  our  said  Lord  the  King,  who  for  our  said  present  sover- 
eign Lord  the  King  prosecutes  in  this  behalf,  prays  the  consideration  of 
the  Court  here  in  the  premises,  and  that  due  process  of  law  may  be  awarded 
against  him,  the  said  John  Horne,  in  this  behalf,  to  make  him  answer  to 
our  said  present  sovereign  Lord  the  King  touching  and  concerning  the  said 

premises  aforesaid,  &c. 

E.  Thurlow. 


No.  61. 
Indictment  for  a  Blasphemous  Libel.  \ 

,  to  wit. 

The  jurors  for  our  Lady  the  Queen  upon  their  oath  present  that  A.  B., 
being  a  wicked  and  evil-disposed  person,  and  disregarding  the  laws  and 
religion  of  the  realm,  and  wickedly  and  profanely  devising  and  intending 
to  bring  the  Holy  Scriptures  and  the  Christian  religion  into  disbelief  and 

contempt  among  the  people  of  this  kingdom,  on  the day  of , 

A.u. ^  unlawfully  and  wickedly  did  compose,  print,  and  publish,  and 

562 


CRIMINAL   PLEADINGS.  *  654 

cause  and  procure  to  be  composed,  printed  and  published,  a  certain 
scandalous,  impious,  blasphemous,  and  profane  libel,  of  and  concerning 
the  Holy  Scriptures  and  the  Christian  religion,  in  one  part  of  which 
said  libel  there  were  and  are  contained,  amongst  other  things,  certain 
scandalous,  impious,  blasphemous,  and  profane  matters  and  things,  of, 
and  concerning  the  Holy  Scriptures  and  the  Christian  religion,  according 
to  the  tenor  and  effect  following,  that  is  to  say,  [here  set  out  the  first  blas- 
phemous passar/e\,  and  in  another  part  thereof  there  were  and  are  contained, 
amongst  other  things,  certain  other  scandalous,  impious,  blasphemous,  and 
profane  matters  and  things,  of  and  concerning  the  said  Holy  Scriptures  and 
the  Christian  religion,  according  to  the  tenor  and  effect  following,  that  is 
to  say,  [here  set  out  other  blasphemous  p)assages\ :  to  the  high 
displeasure  of  Almighty  God,  to  the  *  great  scandal  and  reproach  *  655 
of  the  Christian  religion,  to  the  evil  example  of  all  others  in  the 
hke  case  offending,  and  against  the  peace  of  our  said  Lady  the  Queen  her 
crown  and  dignity. 


No.  62. 
Indictment  for  publishing  and  selling  an  Obscene  Picture. 


,  to  wit. 


The  jurors  for  our  Lady  the  Queen  upon  their  oath  present  that 
A.  B.,  being  a  wicked  and  evil-disposed  person,  and  unlawfully  devising, 
contriving  and  intending  to  debauch  and  corrupt  the  morals  of  the  young 

and  of  divers  other  liege  subjects  of  our  said  Lady  the  Queen,  on  the 

day  of .  A.D. ,  in  a  certain  open  and  public  shop  of  him,  the  said 

A.  B.,  situate  and  being  at  number High  Street,  in  the  parish  of , 

in  the  town  of ,  in  the  county  aforesaid,  unlawfully,  wickedly,  de- 
signedly, and  maliciously  did  publish  and  sell,  and  cause  and  procure  to  be 
published  and  sold,  to  one  C.  D.  a  certain  lewd,  scandalous  and  obscene 

picture  [print,  photograph,  or  engraving,]  intituled ,  and  representing 

\Jiere  give  such  a  detailed  description  of  the  picture  as  icill  manifedhj  show 

its  indecency^  to  the  manifest  corruption  of  the  morals  of  the  young,  and  of 
other  liege  subjects  of  our  said  Lady  the  Queen,  in  contempt  of  our  said 
Lady  the  Queen  and  her  laws,  to  the  evil  example  of  all  others  in  the  like 
case  offending,  and  against  the  peace  of  our  said  Lady  the  Queen,  her  crown 
and  dignity. 

563 


*  655  APPENDIX  A. 

No.  63. 

Indictment  for  Seditious  Words. 

,  to  wit. 

The  jurors  for  our  Lady  the  Queen  upon  their  oath  present  that  A.  B., 

being  a  wicked,  malicious,  seditious,  and  evil-disposed  person,  and  wickedly, 

maliciously,  and  seditiously  contriving  and  intending  the  peace  of  our  Lady 

the  Queen  and  of  this  realm  to  disquiet  and  disturb,  and  the  liege 

*  656    subjects  of  our  said  Lady  the  Queen  to  incite  and  move  to  *  hatred 

and  dislike  of  the  person  of  our  said  Lady  the  Queen  and  of  the 
government  established  by  law  within  this  realm,  and  to  incite,  move,  and 
persuade  great  numbers  of  the  liege  subjects  of  our  said  Lady  the  Queen, 
to  insurrections,  riots,  tumults,  and  breaches  of  the  peace,  and  to  prevent  by 
force  and  arms  the  execution  of  the  laws  of  tliis  realm  and  the  preservation 

of  the  public  peace,  on  the- day  of ,  a.d. ,  in  the  presence 

and  hearing  of  divers,  to  wit, of  the  liege  subjects  of  our  said  Lady  the 

Queen  then  assembled  together,  in  a  certain  speech  and  discourse  by  him 
the  said  A.  B.  then  addressed  to  the  said  liege  subjects  so  then  assembled 
together,  as  aforesaid,  unlawfully,  wickedly,  maliciously,  and  seditiously 
did  publish,  utter,  pronounce,  and  declare  with  a  loud  voice  of  and  con- 
cerning the  government  established  by  law  within  this  realm,  and  of  and 
concerning  our  said  Lady  the  Queen,  and  the  crown  of  this  realm,  and  of 
and  concerning  the  liege  subjects  of  our  said  Lady  the  Queen,  committing 
and  being  engaged  in  divers  insurrections,  riots,  and  breaches  of  the  public 
peace,  amongst  other  Avords  and  matter,  the  false,  wicked,  seditious  and  in- 
flammatory words  and  matter  following,  that  is  to  say  :  —  [here  set  out  the 
seditious  tvords  verbatim]  ;  in  contempt  of  our  said  Lady  the  Queen,  in 
open  violation  of  the  laws  of  this  realm,  to  the  evil  and  pernicious  example 
of  all  others  in  the  like  case  offending,  and  against  the  peace  of  our  said 
Lady  the  Queen,  her  crown  and  dignity. 


No.  64. 

Indictment  for  Defamatory  Words  spoken  to  a  Magistrate  in  the  Execution  of 

his  Did)/. 
Middlesex,  to  wit. 

The  jurors  for  our  Lady  the  Queen  upon  their  oath  present,  that  here- 
tofore, to  vni,  on  the day  of in  the   year  of  our  Lord,  -one 

A.  B.  was  brought  before  C.  D.,  Esquire,  tlien  and  yet  being  one  of  the 
justices  of  our  said  Lady  the  Queen,  assigned  to  keep  the  peace  of  our  said 
Lady  the  Queen  in  and  for  the  county  of  ]\Iiddlesex,  and  also  to  hear  and 
564 


CREVUNAL   PLEADLN'GS.  *  657 

determine  divers  felonies,  trespasses,  and  other  misdeeds  committed 
*  in  the  said  county ;  and  the  said  A.  B.  was  then  charged  hefore  *  557 
the  said  C.  D.,  upon  the  oath  of  one  E.  F.,  that  he,  the  said  A.  B,, 
had  then  lately  before  feloniously  taken,  stolen,  and  taken  away  divers 
goods  and  chattels  of  the  said  E.  F.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  the  said  A.  B.,  being  a  scandalous 
and  ill-disposed  person,  and  wickedly  and  maliciously  intending  and  con- 
triving to  scandalize  and  vilify  the  said  C.  D.  as  such  justice  as  aforesaid, 
and  to  bring  the  administration  of  justice  in  this  kingdom  into  contempt, 
afterwards,  and  whilst  the  said  C.  D.,  as  such  justice  as  aforesaid,  was  ex- 
amining and  taking  the  depositions  of  divers  witnesses  against  him  the  said 
A.  B.,  in  that  behalf,  to  wit,  on  the  day  and  year  aforesaid,  wickedly  and 
maliciously,  in  the  presence  and  hearing  of  divers  good  and  liege  subjects 
of  our  said  Lady  the  Queen,  did  publish,  utter,  pronounce,  declare,  and 
say  with  a  loud  voice  to  the  said  C.  D.,  and  whilst  he  the  said  C.  D.  was 
so  acting  as  such  justice  as  aforesaid,  the  false,  wicked,  malicious,  and  sedi- 
tious words  and  matter  following,  that  is  to  say  :  —  [Here  set  out  the  seditious 
words  verhatini] ;  to  the  gi-eat  scandal  and  reproach  of  the  administration 
of  justice  in  this  kingdom,  to  the  great  scandal  and  damage  of  the  said 
C.  D.,  in  contempt  of  our  said  Lady  the  Queen  and  her  laws,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  and  against  the  peace  of 
our  said  Lady  the  Queen,  her  crown  and  dignity. 


Ko.  65. 
Indictment  for  a  Libel  on  a  Private  Individual  at  Common  Law. 


to  wit. 


The  jurors  for  our  Lady  the  Queen,  upon  their  oath,  present  that  [before 
and  at  the  time  of  the  committing  of  the  offence  hereinafter  mentioned, 
one  C.  D.  was,  and  still  is,  a  solicitor  of  the  Supreme  Court,  and  exercised 

and  carried  on  the  profession  or  business  of  such  solicitor  at ,  in  the 

county  of ;  and  that]  A.  B.,  being  a  person  of  an  evil  and  wicked 

mind,  and  wickedly,  maliciously,  and  unlawfully  contriving  and 
intending  *  to  injure,  vdify,  and  prejudice  the  said  C.  D.,  and  to  000 
bring  him  into  public  contempt,  scandal,  infamy,  and  disgrace,  and 
to  deprive  him  of  his  good  name,  fame,  credit,  and  reputation  [in  his  said 
profession  and  business,  and  otherwise  to  injure  and  aggrieve  liim  therein], 
on  the day  of ,  in  the  year  of  our  Lord  ,  wickedly,  mali- 
ciously, and  unlawfully  did  write  and  publish,  and  cause  and  procure  to  be 
written  and  published,  a  false,  scandalous,  malicious,  and  defamatory  libel 

565 


*  658  APPENDIX  A. 

[in  the  form  of  a  letter  directed  to  one  E.  F.,  containing  divers  false,  scan- 
dalous, malicious,  and  defamatory  matters  and  things]  of  and  concerning 
the  said  C.  D.  [and  of  and  concerning  him  in  his  said  profession  and  busi- 
ness, and  of  and  concerning  his  conduct  and  behavior  therein],  according 
to  the  tenor  and  effect  following,  that  is  to  say  :  —  \_Here  set  out  the  libel 
verbatim,  vjith  all  necessary  innuendoes,']  to  the  great  damage,  scandal,  and 
disgrace  of  the  said  C.  D.  [in  his  said  profession  and  business],  to  the  evil 
example  of  all  others  in  the  like  case  offending,  and  against  the  peace  of 
our  said  Lady  the  Queen,  her  crown  and  dignity. 


No.  66. 

Indictment  under  s.  4  of  Lord  CampbelVs  Act. 

[Commence  as  in  the  preceding  precedent ;  then  set  out  the  libel  with  all 
necessary  innuendoes,  and  conclude  as  follows]  :  —  he,  the  said  A.  B.,  then 
well  knowing  the  said  defamatory  libel  to  be  false ;  to  the  great  damage, 
scandal,  and  disgrace  of  the  said  C.  D.,  to  the  evil  example  of  all  others  in 
the  like  case  offending,  against  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  2:)eace  of  our  Lady  the  Queen,  her  crown  and 
dignity. 


E'o.  67. 

Indictment  tinder  s.  5  of  Lord  CampheWs  Act. 

[This  will  precisely  follow  the  preceding  form,  vierely  omitting  the  words  :  — 
"  he,  the  said  A.  B.,  then  well  knowing  the  said  defamatory  hbel  to  be 
false."] 

*659  *No.  68. 

Demurrer  to  an  Indictment  or  Information. 

And  the  said  A.  B.,  in  his  own  proper  person,  cometh  into  Court  here, 
and,  having  heard  the  said  indictment  [or  information]  read,  saith,  that 
the  said  indictment  [or  information]  and  the  matters  therein  contained,  in 
manner  and  form  as  the  same  are  above  stated  and  set  forth,  are  not  suffi- 
cient in  law,  and  that  he  the  said  A  B.  is  not  bound  by  the  law  of  the 
land  to  answer  the  same ;  and  this  he  is  ready  to  verify  :  Avherefore,  for 
want  of  a  sufficient  indictment  [or  information]  in  this  behalf,  the  said 
566 


CKIMINAL  PLEADINGS.  *  659 

A.  B.  prays  judgment,  and  that  by  the  Court  he  may  be  dismissed  and 
discharged  from  the  said  premises  in  the  said  indictment  [or  information] 
specified. 


No.  69. 

Joinder  in  Demurrer. 

And  J.  N.,  who  prosecutes  for  our  said  Lady  the  Queen  in  this  behalf, 
saith,  that  the  said  indictment  {_or  information]  and  the  matters  therein 
contained,  in  manner  and  form  as  the  same  are  above  stated  and  set  forth, 
are  sufficient  in  law  to  compel  the  said  A.  B.  to  answer  the  same ;  and  the 
said  J.  N.,  who  prosecutes  as  aforesaid,  is  ready  to  verify  and  prove  the 
same,  as  the  Court  here  shall  direct  and  award  :  wherefore,  inasmuch  as 
the  said  A.  B.  hath  not  answered  to  the  said  indictment  {or  information], 
nor  hitherto  in  any  manner  denied  the  same,  the  said  J.  X.,  for  our  said 
Lady  the  Queen,  prays  judgment,  and  that  the  said  A.  B.  may  be  convicted 
of  the  premises  in  the  said  indictment  [or  information]  specified. 


No.  70. 
Pleas  to  an  Indictment. 


At  the  assizes  and  general  delivery  of  the  Queen's  gaol  for  the 

county  of ,  holden  in  and  for  the  said  county  on  the  * day        660 

of ,  A.  D. ,  cometh  in  Court  the  said  A.  B.,  in  his  own 

proper  person,  and  having  heard  the  said  indictment  read,  saith  he  is  not 
guilty  of  the  said  premises  in  the  said  indictment  above  specified  and 
charged  upon  him,  and  of  this,  he  the  said  A.  B.  puts  himself  upon  the 
countrj^  &c. 

And  for  a  further  plea  in  this  behalf,  the  said  A.  B.  says  that  our  Lady 
the  Queen  ought  not  further  to  prosecute  the  said  indictment  against  him, 
because  he  says  that  it  is  true  that  [Here  state  facts  showing  the  truth  of 
every  matter  charged  in  the  alleged  libel'].  And  the  said  A.  B.  further  saith 
that  before  and  at  the  time  of  the  publication  in  the  said  indictment  men- 
tioned [Here  state  facts  sho^ving  that  it  tvas  for  the  public  benefit  that  the 
said  matters  charged  should  be  jyublished'],  by  reason  whereof  it  was  for  the 
public  benefit  that  the  said  matters  so  charged  in  the  said  indictment,  and 
all  and  every  of  them  should  be  published.  And  this  he  the  said  A.  B.  is 
ready  to  verify,  wherefore  he  prays  judgment  and  that  by  the  Court  here 
he  may  be  dismissed  and  discharged  from  the  said  premises  iu  the  said 
indictment  above  specified. 

667 


*  660  APPENDIX  A. 

Xo.  71. 

Replication  to  the  above  Pleas. 

And  thereupon  J.  X.  [the  clerk  of  arraigns,  &c.'\  who  prosecutes  for  our 
said  Lady  the  Queen  in  this  behalf  as  to  the  plea  of  the  said  A.  B.  by  him 
firstly  above  pleaded,  and  whereof  the  said  A.  B.  hath  put  himself  upon 
the  country,  doth  the  like,  &c.  And  as  to  the  plea  of  the  said  A.  B.  by 
him  secondly  above  pleaded,  the  said  J.  N.,  who  prosecutes  as  aforesaid, 
says  that  our  said  Lady  the  Queen  ought  not  by  reason  of  anything  in  the 
said  second  plea  alleged  to  be  barred  or  precluded  from  prosecuting  the  said 
indictment  against  the  said  A.  B. ;  because  he  says,  that  he  denies  the 
said  several  matters  in  the  said  second  plea  alleged,  and  saith  that  the  same 
are  not,  nor  are  nor  is  any  or  either  of  them,  true ;  but  that  the  said  A.  B. 
of  his  own  wrong,  and  without  the  cause  and  matter  of  defence  in  his  said 

second  plea  alleged  and  set  forth,  committed  the  offence  and  pub- 
ot)l     lished  the  said  libel  in  manner  and  form  as  in  *  the  said  indictment 

is  mentioned.  And  this  he,  the  said  J.  !N".  prays  may  be  inquired 
of  by  the  country,  &c.     And  the  said  A.  B.  doth  the  like. 


No.  72. 
Demurrer  to  a  Plea. 


And  J.  N.,  who  prosecutes  for  our  said  Lady  the  Queen  in  this  behalf, 
as  to  the  said  plea  of  the  said  A.  B.  by  him  above  pleaded,  saith  that  the 
same,  and  the  matters  therein  contained,  in  manner  and  form  as  the  same 
are  above  pleaded  and  set  forth,  are  not  sufficient  in  law  to  bar  or  preclude 
our  said  Lady  the  Queen  from  prosecuting  the  said  indictment  against  him 
the  said  A.  B.,  and  that  our  said  Lady  the  Queen  is  not  bound  by  the  law 
of  the  land  to  answer  the  same  ;  and  this  he,  the  said  J.  IST.,  who  prosecutes 
as  aforesaid,  is  ready  to  verify  :  Avherefore,  for  want  of  a  sufficient  plea  in 
this  behalf,  he  the  said  J.  N.  for  our  said  Lady  the  Queen,  prays  judgment, 
and  that  the  said.  A.  B.  may  be  convicted  of  the  premises  in  the  said  indict- 
ment specified. 


No.  73. 
Joinder  in  Demurrer. 


And  the  said  A.  B.  saith,  that  his  said  plea,  by  him  above  pleaded  and 
the  matters  therein  contained,  in  manner  and  form  as  the  same  are  above 
568 


CKIlVnNAL  PLEADDfGS.  *  661 

pleaded  and  set  forth,  are  sufficient  in  law  to  bar  and  preclude  our  said 
Lady  the  Queen  from  prosecuting  the  said  indictment  against  him  the  said 
A.  B.,  and  the  said  A.  B.  is  ready  to  verify  and  prove  the  same,  as  the 
said  Court  here  shall  direct  and  award  :  wherefore  inasmuch  as  the  said 
J.  N.,  for  our  said  Lady  the  Queen,  hath  not  answered  the  said  plea,  nor 
hitherto  in  any  manner  denied  the  same,  the  said  A.  B.  prays  judgment, 
and  that  by  the  Court  here  he  may  be  dismissed  and  discharged  from  the 
said  premises  in  the  said  indictment  specified. 

569 


*662  *appe:n^dix  b. 

EEPOET  FEOM  THE    SELECT   COMMITTEE    OF  THE  HOUSE 
OF  COMMONS  ON  THE  LAW  OF  LIBEL. 

Committee  nominated:  —  Mr.  Attorney  General;  Sir  John  Holker ;  Mr. 
Courtney ;  Mr.  Staveley  Hill ;  Mr.  Alexander  Sullivan  ;  Baron  Henry 
de  Worms ;  Mr.  Edward  Leatham ;  Mr.  Gregory ;  Mr.  Blennerhassett ; 
Mr.  Floyer ;  Dr.  Cameron ;  Mr.  Richard  Paget ;  Mr.  Errington ;  Mr. 
Master ;  Mr.  Hutchinson. 

The  Select  Committee  re-appointed  to  hiquire  into  the  Law  of  Newspaper  Libel 
have  agreed  to  the  folloicing  Report. 

Your  committee  have  not  thought  it  necessary  to  call  witnesses  upon  the 
matters  referred  to  them.  They  have  had  the  advantage  of  the  evidence 
taken  by  the  Select  Committee  of  1879,  who,  owing  to  the  short  time  at 
their  disposal,  were  unable  to  report,  and  your  committee  are  of  opinion 
that  through  the  labors  of  the  former  committee  sufficient  information  has 
been  accumulated  for  the  purposes  of  their  inquiry. 

Your  committee  have  confined  themselves  to  an  examination  of  the  state 
of  the  law  afi'ecting  civil  actions  and  criminal  prosecutions  for  newspaper  libel, 
and  to  the  changes  which,  in  their  judgment,  should  be  made  therein. 

It  appears  to  your  committee  that  one  of  the  most  important  points  of 
the  subject  referred  to  them  is  the  question  of  extension  of  privilege  to 
newspaper  reports  of  the  proceedings  of  public  meetings. 

Your  committee,  after  careful  consideration,  have  come  to  the  conclusion 
that  the  balance  of  convenience  requires  that  further  protection  should  be 
given  to  such  reports. 

Your  committee  accordingly  recommend  that  any  report  published  in  any 
newspaper  of  the  proceedings  of  a  public  meeting  should  be  privileged,  if 
such  meeting  was  lawfully  convened  for  a  lawful  purpose,  and  was 
*  663  open  to  the  public,  and  if  *  such  report  was  fair  and  accurate,  and 
published  without  malice,  and  if  the  publication  of  the  matter  com- 
plained of  was  for  the  public  benefit. 

But  your  committee  are  of  opinion  that  such  protection  should  not  be 
available  as  a  defence  in  any  proceeding  if  the  plaintiff  or  prosecutor,  can 
show  that  the  defendant  has  refused  to  insert  a  reasonable  letter  or  state- 
670 


APPENDIX  B.  *  663 

ment  of  explanation  or  contradiction  by  or  on  behalf  of  such  plaintiff  or 
prosecutor. 

Your  committee  recommend  that  no  criminal  prosecution  shall  be  com- 
menced against  the  proprietor,  publisher,  editor,  or  any  one  responsible  for 
the  publication  of  a  newspaper,  for  any  libel  published  therein,  without  the 
fiat  of  the  Attorney  General  being  first  obtained. 

Your  committee  are  also  of  opinion  that  the  name  of  every  proprietor  of 
a  newspaper,  or,  in  the  case  of  several  persons  engaged  as  partners  in  such 
proprietorship,  the  names  of  all  such  persons  should  be  registered  at  the 
office  of  the  Eegistrar  of  Joint  Stock  Companies,  with  full  particulars  of 
the  addresses  and  occupations  of  all  such  persons,  or  of  any  change  therein, 

14  July,  1880. 

571 


664  *appe:n^dix  c. 


STATUTES. 

CONTENTS. 

PAGE 

3  Edw.  I.  Stat.  Westminster  I.  C.  34 665 

13  Edw.  I.  Stat.  4 ib. 

2  Rich.  II.  St.  I.  c.  5 ib. 

12  Rich.  II.  c.  11 ib. 

13  Car.  II.  Stat.  I.  c.  1 ib. 

4  William  &  Mary,  c.  18,  s.  1 666 

32  Geo.  III.  c.  60.     (Mr.  Fox's  Libel  Act) 667 

39  Geo.  III.  c.  79 668 

51  Geo.  III.  c.  65,  s.  3 669 

60  Geo.  III.  &  1  Geo.  IV.  c.  8,  ss.  1  &  2 ib. 

5  Geo.  IV.  c.  83,  s.  4       670 

6  &  7  Will.  IV.  c.  76,  s.  19       671 

1  &  2  Vict.  c.  38,  s.  2 ib. 

2  &  3  Vict.  c.  12,  ss.  2,  3,  4 672 

3  &  4  Vict.  c.  9       i^- 

6  &  7  Vict.  c.  96.     (Lord  Campbell's  Libel  Act) 674 

8  &  9  Vict.  c.  75 677 

9  &  10  Vict.  c.  33,  s.  1 678 

11  &  12  Vict.  c.  12,  s.  3 *• 

15  &  16  Vict.  c.  76  (C.  L.  P.  Act,  1852),  s.  61 679 

18  &  19  Vict.  c.  41 *■^• 

20  &  21  Vict.  c.  83 680 

23  &  24  Vict.  c.  32 682 

43  &  44  Vict.  c.  41  (Bmial  Laws  Amendment  Act,  1880),  s.  7 ^^• 

572 


A.D.  1661.]  STATUTES.  *  665 

*  APPENDIX  OF  STATUTES.  *665 

THE  STATUTE   OF  CIECUMSPECTE  AGATIS. 

13  EDW.  I.  Stat.  4. 

[a.d.  1285.] 

The  King  to  his  judges  sendeth  greeting  :  — 

1.  Use  yourselves  circumspectly  in  all  matters  concerning  the  Bishop  of  Norwich 
and  his  clergy,  not  punishing  them  if  they  hold  plea,  in  Court  Christian,  of  such  things 
as  be  mere  spiritual,  that  is  to  wit,  of  penance  enjoined  by  prelates  for  deadly  sin,  as 
fornication,  adultery,  and  such  like,  for  the  which  sometimes  corporal  penance,  and 
sometime  pecuniary  is  enjoined 

6.  And  for  laying  violent  hands  on  a  clerk,  and  in  cause  of  defamation,  it  hath  been 
granted  already,  that  it  shall  be  tried  in  a  Spiritual  Court,  when  money  is  not  demanded, 
but  [a  thing  done]  for  2mnishme7it  of  sin,  and  likewise  fov  hreaking  an  oath 

12.  Li  causes  of  defamation,  pixlates  may  freely  correct,  the  King's  prohibition  not- 
withstanding ;  first  enjoining  a  corjjoral  penance,  tvhich,  if  the  party  will  redeem,  the 
prelate  may  lawfully  receive  the  money,  though  the  prohibition  be  showed. 

[N.  B.  —  The  words  in  italics,  being  rendered  unnecessary  by  the  18  &  19  Vict.  c.  41, 
are  now  repealed  by  the  Stat.  Law.  Revn.  Act,  1863,  26  &  27  Vict.  c.  125.] 


SCANDALUM  IMAGNATUiyi. 

3  Edw.  I.  Stat.  Westminster  I.  c.  84 avie,  p.  133  ^ 

2  Rich.  II.  St.  I.  c.  5 ante,  p.  134 

12  Rich.  II.  c.  11 ih 


13  CAR.  II.  Stat.  I.  c.  1. 

[a.d.  1661.] 
S.  3.  And  to  the  end  that  no  man  hereafter  may  be  misled  into  any  seditious  or 
unquiet  demeanor  out  of  an  opinion  that  the  Parliament  begun  and  held  at  West- 
minster upon  the  third  day  of  November,  in  the  year  of  our  Lord  1640,  is  yet  in  being 
which  is  undoubtedly  dissolved  and  determined,  and  so  is  hereby  declared  and  adjudged 
to  be  fully  dissolved  and  determined,  or  out  of  an  opinion  that  there  lies  any  obligation 
upon  him  from  any  oath,  covenant,  or  engagement  whatsoever,  to  endeavor  a  change 
of  government  either  in  church  or  state,  or  out  of  an  opinion  that  both  Houses  of  Par- 
liament, or  either  of  them  have  a  legislative  power  without  the  King,  all  which  asser- 
tions have  been  seditiously  maintained  in  some  pamphlets  lately  printed,  and 
are  daily  promoted  by  the  active  *  enemies  of  our  peace  and  happiness  ;  Be  it  *  666 
therefore  further  enacted  by  the  authority  aforesaid,  that  if  any  person  or  per- 
sons at  any  time  after  the  four  and  twentieth  day  of  June,  in  the  year  of  our  Lord  1661, 

573 


*  666  APPENDIX   C.  A.D.  1692.] 

shall  maliciously  and  advisedlj',  by  writing,  printing,  preaching,  or  other  speaking  ex- 
press, publish,  utter,  declare,  or  affirm  that  the  Parliament  begun  at  Westminster  upon 
the  third  day  of  November,  in  the  year  of  our  Lord  1640,  is  not  yet  dissolved,  or  is  not 
determined,  or  that  it  ought  to  be  in  bc4ng,  or  hath  yet  any  continuance  or  existence, 
or  that  there  lies  any  obligation  upon  him  or  any  other  person  from  any  oath,  covenant, 
or  euoa^ement  whatsoever,  to  endeavor  a  change  of  government  either  in  church  or 
state,  or  that  both  Houses  of  Parliament,  or  either  House  of  Parliament  have  or  hath 
a  lecfislative  power  without  the  King,  or  any  other  words'  to  the  same  effect,  that  then 
every  such  person  and  persons  so  aforesaid  offending  shall  incur  the  danger  and  jienalty 
of  a  premunire  mentioned  in  a  statute  made  in  the  16th  year  of  the  reign  of  King 
Richard  the  Second.  And  it  is  hereby  also  declared  that  the  oath  usually  called  the 
solemn  league  and  covenant  was  in  itself  an  unlawful  oath  and  imposed  upon  the  sub- 
jects of  this  realm  against  the  fundamental  laws  and  liberties  of  this  kingdom,  and  that 
all  orders  and  ordinances  or  pretended  orders  and  ordinances  of  both  or  either  Houses 
of  Parliament  for  imposing  of  oaths,  covenants,  or  engagements,  levying  of  taxes,  or 
raising  of  forces  and  arms,  to  which  the  royal  assent  either  in  person  or  by  commission 
was  not  expressly  had  or  given,  were  in  their  first  creation  and  making,  and  still  ar^, 
and  so  shall  be  taken  to  be  null  and  void  to  all  intents  and  purposes  whatsoever 


4  WILLIAM  &  MARY,  c.  18. 

An  Act  to  prevent  malicious  informations  in  the  Court  of  King's  Bench. 

[A.D.  1692.] 
S.  1.  The  clerk  of  the  crown  in  the  said  Court  of  King's  Bench  for  the  time  being 
shall  not  without  express  order,  to  be  given  by  the  said  Court  in  open  Court,  exhibit, 
receive,  or  file  any  information  for  any  of  the  causes  aforesaid,  or  issue  out  any  jjrocess 
thereupon,  before  he  shall  have  taken  or  shall  have  delivered  to  him  a  recognizance 
from  the  person  or  persons  procuring  such  information  to  be  exhibited  with  the  place 
of  his,  her,  or  their  abode,  title,  or  profession,  to  be  entered  to  the  person  or  persons 
against  whom  such  information  or  infoimations  is  or  are  to  be  exhibited  in  the  penalty 
of  twenty  pounds,  that  he,  she,  or  they  will  effectually  prosecute  such  informations  or 
information,  and  abide  by  and  observe  such  orders  as  the  said  Court  shall  direct,  which 
recognizance  the  said  clerk  of  the  crown  and  also  every  justice  of  the  peace  of  any 
county,  city,  franchise  or  town  corporate  (where  the  cause  of  any  such  information  shall 
arise),  are  hereby  impowered  to  take,  after  the  taking  whereof  by  the  said  clerk  of  the 

crown,  or  the  receipt  thereof  from  any  justice  of  the  peace,  the  said  clerk  of  the 
*  667     crown  shall  make  an  entry  thereof  upon  record,  and  shall  file  *a  memorandum 

thereof  in  some  public  place  in  his  office,  that  all  persons  may  resort  there- 
unto without  fee.  And  in  case  any  person  or  persons  against  whom  any  information 
or  informations  for  the  causes  aforesaid,  or  any  of  them,  shall  be  exhibited,  shall  appear 
thereunto  and  plead  to  issue,  and  that  the  prosecutor  or  prosecutors  of  such  informa- 
tion or  informations  shall  not  at  his  and  their  own  proper  costs  and  charges  within  one 
whole  year  next  after  issue  joined  therein  procure  the  same  to  be  tried,  or  if  upon  such 
trial  a  verdict  pass  for  the  defendant  or  defendants,  or  in  case  the  said  informer  or 
informers  procure  a  noli  prosequi  to  be  entered  then  in  any  of  the  said  cases  the  said 
Court  of  King's  Bench  is  hereby  authorized  to  award  to  the  said  defendant  and  defend- 
ants, his,  her,  or  their  costs,  unless  the  judge  before  whom  such  information  shall  be  tried 
shall  at  the  trial  of  such  information  in  open  Court  certify  upon  record  that  there  was  a 
574 


A.D.  1799.] 


STATUTES.  *  665 


reasonable  cause  for  exhibiting  such  information.  And  in  case  the  said  informer  or 
informers  shall  not  within  three  months  next  after  the  said  costs  taxed  and  demand 
made  thereof,  pay  to  the  said  defendant  or  defendants  the  said  costs,  then  the  said 
defendant  and  defendants  shall  have  the  benefit  of  the  said  recognizance  to  compel  them 
thereunto. 


MR.  FOX'S   LIBEL  ACT. 

32  GEO.  III.  c.  60. 

[A.D.  1792.] 
An  Act  to  remove  doubts  respecting  the  Functions  of  Juries  in  Cases  of  Libel. 

Whereas  doubts  have  arisen  -whether  on  the  trial  of  an  indictment  or  information 
for  the  making  or  publishing  anj'  libel,  where  an  issue  or  issues  are  joined  between  the 
King  and  the  defendant  or  defendants,  on  the  plea  of  not  guilty  pleaded,  it  be  compe- 
tent to  the  jury  impanelled  to  try  the  same  to  give  their  verdict  upon  the  whole 
matter  in  issue :  Be  it  therefore  declared  and  enacted  by  the  King's  most  excellent 
Majesty,  by  and  with  the  advice  and  consent  of  the  lords  spiritual  and  temporal,  and 
commons,  in  this  present  Parliament  assembled,  and  by  the  authority  of  the  same,  that 
on  every  such  trial  the  jury  sworn  to  try  the  issue  may  give  a  general  verdict  of  guilty 
or  not  guilty  upon  the  whole  matter  put  in  issue  upon  such  indictment  or  information, 
and  shall  not  be  required  or  directed  by  the  Court  or  judge  before  whom  such  indict- 
ment or  information  shall  be  tried  to  find  the  defendant  or  defendants  guilty  merely  on 
the  proof  of  the  publication  by  such  defendant  or  defendants  of  the  paper  charged  to  be 
a  libel,  and  of  the  sense  ascribed  to  the  same  in  such  indictment  or  information. 

2.  Provided  always,  that  on  every  such  trial  the  Court  or  judge  before  whom  such 
indictment  or  information  shall  be  tried  shall,  according  to  their  or  his  direc- 
tion, give  their  or  his  opinion  and  directions  to  the  jury  on  the  *  matter  in         668 
issue  between  the  King  and  the  defendant  or  defendants,  in  like  manner  as  in 

other  criminal  cases. 

3.  Provided  also,  that  nothing  herein  contained  shall  extend  or  be  construed  to  ex- 
tend to  prevent  the  jury  from  finding  a  special  verdict,  in  their  discretion,  as  in  other 
criminal  cases. 

4.  Provided  also,  that  in  case  the  jury  shall  find  the  defendant  or  defendants  guilty 
it  shall  and  may  be  lawful  for  the  said  defendant  or  defendants  to  move  in  arrest  of 
judgment,  on  such  ground  and  in  such  manner  as  by  law  he  or  they  might  have  done 
before  the  passing  of  this  Act,  anything  herein  contained  to  the  contrary  notwith- 
standing. 


39  GEO.  III.  c.  79.  ^         ,_^^  . 

S.  28.  Nothing  in  this  Act  contained  shall  extend  or  be  construed  to  extend  to 
any  papers  printed  by  the  authority  and  for  the  use  of  either  Houses  of  Parliament. 

S.  29.  Every  person  who  shall  print  any  paper  for  hire,  reward,  gain,  or  profit,  shall 
carefully  preserve  and  keep  one  copy  (at  least)  of  every  paper  so  printed  by  him  or  her, 
on  which  he  or  she  shall  write,  or  cause  to  be  written  or  printed,  in  fair  and  legible 
characters,  the  name  and  place  of  abode  of  the  person  or  persons  by  whom  he  or  she 
shall  be  employed  to  print  the  same,  and  every  person  printing  any  paper  for  hire,  re- 
ward, gain  or  profit  who  shall  omit  or  neglect  to  write,  or  cause  to  be  written  or  printed 

575 


*  668  APPENDIX   C.  A.D.  1811.] 

as  aforesaid,  the  name  and  place  of  his  or  her  employer  on  one  of  such  printed  papers, 
or  to  keep  or  preserve  the  same  for  the  space  of  six  calendar  months  next  after  the  printing 
thereof,  or  to  produce  and  show  the  same  to  any  justice  of  the  peace  who  within  the 
said  space  of  six  calendar  months  shall  require  to  see  the  same,  shall  for  every  such 
omission,  neglect,  or  refusal  forfeit  and  lose  the  sum  of  twenty  pounds. 

S.  31.  Kothing  herein  contained  shall  extend  to  the  impression  of  any  engraving, 
or  to  the  printing  by  letter-press  of  the  name,  or  the  name  and  address  or  business 
or  profession,  of  any  person,  and  the  articles  in  which  he  deals,  or  to  any  papers  for  the 
sale  of  estates  or  goods  by  auction  or  otherwise. 

•  S.  '34.  No  person  shall  be  prosecuted  or  sued  for  any  penalty  imposed  by  this  Act, 
unless  such  prosecution  shall  be  commenced,  or  such  action  shall  be  brought,  within 
three  calendar  months  next  after  such  penalty  shall  have  been  incurred. 

S.  35.  And  any  pecuniary  penalty  imposed  by  this  Act,  and  not  exceeding  the  sum 
of  twenty  pounds,  shall  and  may  be  recovered  before  any  justice  or  justices  of  the  peace 
for  the  county,  stewartry,  riding,  division,  city,  town,  or  place,  in  which  the  same  shall 
he  incurred,  or  the  person  having  incurred  the  same  shall  happen  to  be,  in  a  summary 
way. 

S.  36.    All  pecuniary  penalties  hereinbefore  imposed  by  this  Act  shall,  wlien 

*  669     recovered  in  a  summary  way  before  any  justice,  be  applied  and  disposed  *  of 

in  manner  hereinafter  mentioned  ;  that  is  to  say,  one  moiety  thereof  to  the 
informer  before  any  justice,  and  the  other  moiety  thereof  to  his  Majesty,  his  heirs  and 
successors. 

[N.  B.  —  The  above  sections  are  continued  and  re-enacted  by  32  &  33  Vict.  c.  24, 
schedule  2  ;  while  other  sections  of  the  same  statute  are  repealed  by  schedule  1.] 


51  GEO.  III.  c.  65. 

[a.  d.  1811.] 
S.  3.  Nothing  in  the  said  Act  of  the  thirty-ninth  year  of  King  George  the  Third, 
chapter  seventy-nine,  or  in  this  Act  contained,  shall  extend  or  be  construed  to  extend 
to  require  the  name  and  residence  of  the  printer  to  be  printed  upon  any  bank  note,  or 
hank  post  bill  of  the  Governor  and  Company  of  the  Bank  of  England,  upon  any  bill  of 
exchange,  or  promissory  note,  or  upon  any  bond  or  other  security  for  payment  of 
money,  or  upon  any  bill  of  lading,  policy  of  insurance,  letter  of  attorney,  deed,  or 
agreement,  or  upon  any  transfer  or  assignment  of  any  public  stocks,  funds,  or  other 
securities,  or  upon  any  transfer  or  assignment  of  the  stocks  of  any  public  corporation 
or  company  authorized  or  sanctioned  by  Act  of  Parliament,  or  upon  any  dividend  war- 
rant of  or  for  any  such  public  or  other  stocks,  funds,  or  securities,  or  upon  any  receii)t 
for  money  or  goods,  or  upon  any  proceeding  in  any  court  of  law  or  equity,  or  in  any 
inferior  Court,  warrant,  order,  or  other  papers  printed  by  the  authority  of  any  public 
board  or  public  officer  in  the  execution  of  the  duties  of  their  respective  oflBces,  notwith- 
standing the  whole  or  any  part  of  the  said  several  securities,  instruments,  proceedings, 
matters,  and  things  aforesaid  shall  have  been  or  shall  he  printed. 

[N.  B.  —  This  section  is  continued  and  re-enacted  by  the  32  &  33  Vict.  c.  24, 
schedule  2.] 

576 


A.D.  1819.]  STATUTES.  *  669 


60  GEO.  III.  AND  1  GEO.  IV.  c.  8. 

An  Act  for  the  more  effectual  Prevention  and  Ptmishment  of  Uasphemous  and  seditious 
Libels.  [30</4  December,  1819.] 

Whereas  it  is  expedient  to  make  more  effectual  provision  for  the  punishmenfrof  blas- 
phemous and  seditious  libels  :  Be  it  enacted  by  the  King's  most  excellent  Majesty,  by 
and  with  the  advice  and  consent  of  the  lords  spiritual  and  temporal,  and  commons,  in  this 
present  Parliament  assembled,  and  by  the  authority  of  the  same,  that  from  and  after  the 
passing  of  this  Act,  in  every  case  in  which  any  verdict  or  judgment  by  default  shall  be 
had  against  any  person  for  composing,  printing,  or  publishing  any  blasphemous  Ubel,  or 
any  seditious  libel  tending  to  bring  into  hatred  or  contempt  the  person  of  his 
Majesty,  his  heirs  or  successors,  or  the  Regent,  or  the  government  *  and  consti-  *  670 
tution  of  the  United  Kingdom  as  by  law  established,  or  either  House  of  Par- 
liament, or  to  excite  his  Majesty's  subjects  to  attempt  the  alteration  of  any  matter  in 
Church  or  State  as  by  law  established,  otherwise  than  by  lawful  means,  it  shall  be 
lawful  for  the  judge  or  the  Court  before  whom  or  in  which  such  verdict  shall  have 
been  given,  or  the  Court  in  which  such  judgment  by  default  shall  be  had,  to  make  an 
order  for  the  seizure  and  canning  away  and  detaining  in  safe  custodj-,  in  such  manner 
as  shall  be  directed  in  such  order,  all  copies  of  the  libel  which  shall  be  in  the  posses- 
sion of  the  person  against  whom  such  verdict  or  judgment  shall  have  been  had,  or  in 
the  possession  of  any  other  person  named  in  the  order  for  his  use,  evidence  upon  oath 
having  been  previously  given  to  the  satisfaction  of  such  Court  or  judge,  that  a  copy  or 
copies  of  the  said  libel  is  or  are  in  the  possession  of  such  other  person  for  the  use  of 
the  person  against  whom  such  verdict  or  judgment  shall  have  been  had  as  aforesaid  ; 
and  in  ever}'  such  case  it  shall  be  lawful  for  any  justice  of  the  peace,  or  for  any  con- 
stable or  other  peace  officer  acting  under  any  such  order,  or  for  any  person  or  persons 
acting  with  or  in  aid  of  any  such  justice  of  the  peace,  constable,  or  other  peace  officer, 
to  search  for  any  copies  of  such  libel  in  any  house,  building,  or  other  place  whatsoever 
belonging  to  the  person  against  whom  any  such  verdict  or  judgment  shall  have  been 
had,  or  to  any  other  person  so  named,  in  whose  possession  any  copies  of  any  such  libel, 
belonging  to  the  person  against  whom  any  such  verdict  or  judgment  shall  have  been 
had,  shall  be ;  and  in  case  admission  shall  be  refused,  or  not  obtained  within  a  reasona- 
ble time  after  it  shall  have  been  first  demanded,  to  enter  by  force  by  day  into  any  such 
house,  building,  or  place  whatsoever,  and  to  carry  away  all  copies  of  the  libel  there 
found,  and  to  detain  the  same  in  safe  custody,  until  the  same  shall  be  restored  under  the 
provisions  of  this  Act,  or  disposed  of  according  to  any  farther  order  made  in  relation 
thereto. 

2.  And  be  it  further  enacted,  that  if  in  any  such  case  as  aforesaid  judgment  shall  be 
arrested,  or  if,  after  judgment  shall  have  been  entered,  the  same  shall  be  reversed  upon 
any  writ  of  error,  all  copies  so  seized  shall  be  forthwith  returned  to  the  person  or  per- 
sons from  whoift  the  same  .shall  have  been  so  taken  as  aforesaid,  free  of  all  charge  and 
expense,  and  without  the  payment  of  any  fees  whatever  ;  and  in  every  case  in  whicli 
final  judgment  shall  be  entered  upon  the  verdict  so  found  against  the  person  or  persons 
charged  with  having  composed,  printed,  or  published  such  libel,  then  all  copies  so  seized 
shall  be  disposed  of  as  the  Court  in  which  such  judgment  shall  be  given  shall  order 
and  direct. 

37  677 


*670  APPENDIX  C.  A.D.  1838.] 

5  GEO.  IV.  c.  83. 

[21st  June,  1824.] 

S.  4 Every  person  wilfully  exposing  to  view  in  any  street,  road,  highway, 

or  public  place,  any  obscene  print,  picture,  or  other  indecent  exhibition,  ....  shall 
be  deemed  a  rogue  and  vagabond,  within  the  true  intent  and  meaning  of  this 
*  671  -A^ct ;  and  it  shall  be  lawful  for  any  justice  of  the  *  peace  to  commit  such  of- 
fender (being  thereof  convicted  before  him  by  the  confession  of  such  offender, 
or  by  the  evidence  on  oath  of  one  or  more  credible  witness  or  witnesses)  to  the  house 
of  correction,  there  to  be  kept  to  hard  labor  for  any  time  not  exceeding  three  calendar 
months 


6  &  7  WILL.  4,  c.  76. 

[a.d.  1836.] 
S.  19.  If  any  person  shall  file  any  bill  in  any  court  for  the  discovery  of  the  name  of 
any  person  concerned  as  printer,  jiublisher,  or  propiietor  of  any  newspaper,  or  of  any 
matters  relative  to  the  printing  or  publishing  of  any  newspaper,  in  order  the  more 
eflectually  to  bring  or  carry  on  any  suit  or  action  for  damages  alleged  to  have  been 
sustained  by  reason  of  any  slanderous  or  libellous  matter  contained  in  any  such  news- 
paper respecting  such  person,  it  shall  not  be  lawful  for  the  defendant  to  plead  or  demur 
to  such  bill,  but  such  defendant  shall  be  compellable  to  make  the  discovery  required  ; 
provided  alway.s,  that  such  discovery  shall  not  be  made  use  of  as  evidence  or  otherwise 
in  any  proceeding  against  the  defendant,  save  only  in  that  proceeding  for  which  the 
discovery  is  made. 

[IST.  B.  — This  section  applies  to  Ireland,  It  was  re-enacted  by  32  &  33  Vict.,  c.  24, 
schedule  2,  and  therefore  remains  law,  although  the  original  statute,  6  &  7  Will.  IV., 
c.  76,  was  wholly  repealed  without  any  allusion  to  this  section,  by  the  33  &  34  Vict., 
c.  99.     See  ante,  pp.  513,  514.] 


1  &  2  VICT.  c.  38. 

[a.d.  1838.] 
S.  2.  And  whereas  by  the  said  recited  Act  (i.  c,  the  5  Geo.  IV.  c.  83,  s.  4,  and  not 
as  stated  m  the  margin  to  tlie  Revised  Edition  of  the  Statutes,  vol.  viii.  ^;.  216,  the  5 
Geo.  III.  c.  83,  s.  5,)  it  is  enacted  that  every  person  wilfully  exposing  to  view  in  any 
street  road,  highway,  or  public  place,  any  obscene  print,  picture,  or  other  indecent 
exhibition  shall  on  summary  conviction  thereof,  be  liable  to  punishment  as  therein 
provided  :  And  whereas  doubts  have  arisen  whether  the  exposing  to  public  view  in  the 
windows  of  shops  in  streets,  highways,  or  other  public  places,  of  any  obscene  ])rint, 
picture,  or  other  indecent  exhibition,  is  an  offence  within  the  meaning  of  the  said  re- 
cited Act  :  Be  it  therefore  declared  and  enacted,  that  every  person  who  shall  wilfully 
expose  or  cause  to  be  exposed  to  public  view  in  the  window  or  other  part  of  any  shop 
or  other  building  situate  in  any  street,  road,  highway,  or  public  place,  any  obscene 
print,  picture,  or  other  indecent  exhibition,  shall  be  deemed  to  have  wilfully  exposed 
such  obscene  print,  picture,  or  other  indecent  exhibition  to  public  view  within  the 
intent  and  meaning  of  the  said  Act,  and  shall  accordingly  be  liable  to  be  proceeded 
against,  and,  on  conviction,  to  be  punished  under  the  provisions  of  the  said  Act. 

578 


A.D.  1S40.]  STATUTES.  *  672 

*672 

*2  &  3  VICT.  c.  12. 

[a.d.  1839.] 

S.  2.  EvEKY  person  who  shall  print  any  paper  or  book  whatsoever  which  shall  be 
meant  to  be  published  or  dispersed,  and  who  shall  not  print  upon  the  front  of  every 
such  paper,  if  the  same  shall  be  printed  on  one  side  only,  or  upon  the  first  or  last  leaf 
of  every  paper  or  book  which  shall  consist  of  more  than  one  leaf,  in  "legible  characters, 
his  or  her  name  and  usual  place  of  abode  or  business,  and  every  person  who  shall  pub- 
lish or  disperse,  or  assist  in  publishing  or  dispersing,  any  printed  paper  or  book  on 
whicix  the  name  and  place  of  abode  of  the  person  printing  the  same  shall  not  be  printed 
as  aforesaM,  shall  for  every  copy  of  such  paper  so  printed  by  him  or  her  forfeit  a  sum 
not  more  than  five  pounds  :  Provided  always,  that  nothing  herein  contained  shall  be 
construed  to  impose  any  penalty  upon  any  person  for  printing  any  paper  excepted  out 
of  the  operation  of  the  said  Act  of  the  thirty-ninth  year  of  King  George  the  Third, 
chapter  seventy-nine,  either  in  the  said  Act  or  by  any  Act  made  for  the  amendment 
thereof. 

S.  3.  In  the  case  of  books  or  papers  printed  at  the  University  Press  of  Oxford,  or 
the  Pitt  Press  of  Cambridge,  the  printer,  instead  of  printing  his  name  thereon,  shall 
print  the  following  words,  "  Printed  at  the  University  Press,  Oxford,"  or,  "The  Pitt 
Press,  Cambridge,"  as  the  case  may  be. 

S.  4.  Provided  always  that  it  shall  not  be  lawful  for  any  person  or  persons 
whatsoever  to  commence,  prosecute,  enter,  or  file,  or  cause  or  procure  to  be  com- 
menced, prosecuted,  entered,  or  filed,  any  action,  bill,  plaint,  or  infoimation  in  any 
of  Her  Majesty's  Courts,  or  before  any  justice  or  justices  of  the  peace,  against  any 
person  or  persons  for  the  recovery  of  any  fine,  penalty,  or  forfeiture  made  or  in- 
curred, or  which  may  hereafter  be  incurred  under  the  provisions  of  this  Act,  unless  the 
same  be  commenced,  prosecuted,  entered,  or  filed  in  the  name  of  Her  Maj|sty's 
Attorney-General  or  Solicitor-General  in  that  part  of  Great  Britain  called  England,  or 
Her  Majesty's  Advocate  for  Scotland  (as  the  case  may  be  respectively) ;  and  if  any 
action,  bill,  plaint,  or  information  shall  be  commenced,  prosecuted,  or  filed  in  the 
name  or  names  of  any  other  person  or  persons  than  is  or  are  in  that  behalf  before  men- 
tioned, the  same  and  every  proceeding  thereupon  had  are  hereby  declared,  and  the 
same  shall  be  null  and  void  to  all  intents  and  purposes. 

[N.  B.  —  The  above  sections  are  re-enacted  by  32  &  33  Vict.  c.  24,  schedule  2  ;  the 
rest  of  the  Act  is  repealed  by  schedule  1.] 


3  &  4  VICT.  c.  9. 


An  Act  to  give  Summary  Protection  to  Persons  employed  in  the  Publication  of  Parlia- 
mentary Papers.  [14<7i  April,  1340.] 
Wheueas  it  is  essential  to  the  due  and  cfTcctual  exercise  and  discharge  of 
the  functions  and  duties  of  Parliament,  and  to  the  promotion  of  wise  *  legis-         67o 
lation,  that  no  obstructions  or  impediments  should  exist  to  the  publication  of 
such  of  the  reports,  papers,  votes,  or  proceedings  of  either  House  of  P.irliament,  as  sucli 
House  of  Parliament  may  deem  fit  or  necessary  to  be  published  :  And  whereas  obstruc- 
tionsor  impediments  to  such  publication  have  arisen,  and  liereafter  may  arise,  by  means 
of  civil  or  criminal  proceedings  being  taken  against  jiersons  employed  by  or  acting  un- 
der the  authority  of  the  Houses  of  Parliament,  or  one  of  them,  in  the  publication  of 
such  reports,  papers,  votes,  or  proceedings  ;  by  reason  and  for  remedy  whereof  it  i:i  ex- 

679 


*  673  APPENDIX  C.  A.D.  1840.] 

pedient  that  more  speedy  protection  should  be  afforded  to  all  persons  acting  under  the 
authority  aforesaid,  and  that  all  such  civil  or  criminal  proceedings  should  be  summarily 
put  an  end  to  and  determined  in  manner  hereinafter  mentioned :  Be  it  therefore  en- 
acted by  the  Queen's  most  excellent  Majesty,  by  and  with  the  advice  and  consent  of 
the  lords  spiritual  and  temporal,  and  commons,  in  this  present  Parliament  assembled, 
and  by  the  authority  of  the  same,  That  it  shall  and  may  be  lawful  for  any  person  or 
persons  who  now  is,  or  are,  or  hereafter  shall  be,  a  defendant  or  defendants  in  any  civil 
or  criminal  proceedings  commenced  or  prosecuted  in  any  manner  soever,  for  or  on  ac- 
count or  in  respect  of  the  publication  of  any  such  report,  paper,  votes,  or  proceedings 
by  such  person  or  persons,  or  by  his,  her,  or  their  servant  or  sei-vants,  by  or  under  the 
authority  of  either  House  of  Parliament,  to  bring  before  the  Court  in  which  such  pro- 
ceeding shall  have  been  or  shall  be  so  commenced  or  prosecuted,  or  before  any  judge  of 
the  same  (if  one  of  the  Superior  Courts  at  Westminster),  first  giving  twenty-four  hours' 
notice  of  his  intention  so  to  do  to  the  prosecutor  or  plaintiff  in  such  jiroceeding,  a  cer- 
tificate under  the  hand  of  the  Lord  High  Chancellor  of  Great  Britain,  or  the  Lord 
Keeper  of  the  Great  Seal,  or  of  the  Speaker  of  the  House  of  Lords,  for  the  time  being, 
or  of  the  Clerk  of  the  Parliament,  or  of  the  Speaker  of  the  House  of  Commons,  or  of 
the  clerk  of  the  same  House,  stating  that  the  report,  paper,  votes,  or  proceedings  as 
the  case  may  be,  in  respect  whereof  such  civil  or  criminal  proceeding  shall  have  been 
commenced  or  prosecuted,  was  published  by  such  person  or  persons,  or  by  his,  her,  or 
their  servant  or  servants,  by  order  or  under  the  authority  of  the  House  of  Lords  or  of 
the  House  of  Commons,  as  the  case  may  be,  together  with  an  affidavit  verifying  such 
certificate  ;  and  such  Court  or  judge  shall  thereupon  immediately  stay  such  civil  or 
criminal  proceeding,  and  the  same,  and  every  writ  or  process  issued  therein,  shall  be 
and  shall  be  deemed  and  taken  to  be  finally  put  an  end  to,  detennined,  and  superseded 
by  virtue  of  this  Act. 

2m  And  be  it  enacted,  that  in  case  of  any  civil  or  criminal  proceeding  hereafter  to  be 
commenced  or  prosecuted  for  or  on  account  or  in  respect  of  the  publication  of  any  copy 
of  such  report,  paper,  votes,  or  proceedings,  it  shall  be  lawful  for  the  defendant  or  de- 
fendants at  any  stage  of  the  proceedings  to  lay  before  the  Court  or  judge  such  report, 
paper,  votes,  or  proceedings,  and  such  copy,  with  an  affidavit  verifying  such  report, 
paper,  votes,  or  proceedings,  and  the  correctness  of  such  copy,  and  the  Court  or  judge 
shall  immediately  stay  such  civil  or  criminal  proceeding  ;  and  the  same,  and 

*  674     every  writ  or  process  issued  therein,  shall  be  and  shall  be  deemed  and  taken  *  to 

be  finally  put  an  end  to,  determined  and  superseded  by  virtue  of  this  Act. 

3.  And  be  it  enacted,  that  it  shall  be  lawful  in  any  civil  or  criminal  proceeding  to 
be  commenced  or  prosecuted  for  printing  any  extract  from  or  abstract  of  such  report, 
paper,  votes,  or  proceedings,  to  give  in  evidence  under  the  general  issue  such  report, 
paper,  votes  or  proceedings,  and  to  show  that  such  extract  or  abstract  was  published 
bond  fide  and  without  malice  ;  and  if  such  shall  be  the  opinion  of  the  jury,  a  verdict  of 
not  guilty  shall  be  entered  for  the  defendant  or  defendants. 

4.  Provided  always,  and  it  is  hereby  expressly  declared  and  enacted,  that  nothing 
herein  contained  shall  be  deemed  or  taken,  or  held  or  construed,  directly  or  indirectly, 
by  implication  or  otherwise,  to  affect  the  privileges  of  Parliament  in  ssxy  manner  what- 
soever. 

580 


A-D.  1843.]  STATUTES.  *  674 

LORD  CAMPBELL'S  LIBEL  ACT. 

6  &  7  A'ICT.  c.  96. 

An  Act  to  amend  the  Law  respecting  Defamatory  tcords  and  Libel. 

[2ith  August,  1843.] 

For  the  better  protection  of  private  character,  and  for  more  effectually  securing  the 
liberty  of  the  press,  and  for  better  preventing  abuses  in  exercising  the  said  liberty,  be 
it  enacted  by  the  Queen's  most  excellent  Slajesty,  by  and  with  the  advice  and  consent 
of  the  lords  spiritual  and  temporal,  and  commons,  in  this  present  Parliament  assembled, 
and  by  the  authority  of  the  same,  that  in  any  action  for  defamation  it  shall  be  lawful 
for  the  defendant  (after  notice  in  writing  of  his  intention  so  to  do,  duly  given  to  the 
plaintiff  at  the  time  of  filing  or  delivering  the  plea  in  such  action)  to  give  in  evidence, 
in  mitigation  of  damages,  that  he  made  or  offered  an  apology  to  the  plaintiff  for  such 
defamation  before  the  commencement  of  the  action,  or  as  soon  afterwards  as  he  had  an 
opportunity  of  doing  so,  in  case  the  action  shall  have  been  commenced  before  there  was 
an  opportunity  of  making  or  offering  such  apology. 

2.  And  be  it  enacted,  that  in  an  action  for  a  libel  contained  in  any  public  news- 
paper or  other  periodical  publication  it  shall  be  competent  to  the  defendant  to  plead 
that  such  libel  was  inserted  in  such  newspaper  or  other  periodical  publication  without 
actual  malice,  and  without  gross  negligence,  and  that  before  the  commencement  of  the 
action,  or  at  the  earliest  opportunity  afterwards,  he  inserted  in  such  newspaper  or  other 
periodical  publication  a  full  apology  for  the  said  libel,  or,  if  the  newspaper  or  periodical 
publication  in  which  the  said  libel  appeared  should  be  ordinarily  published  at  intei-vals 
exceeding  one  week,  had  offered  to  publish  the  said  apology  in  any  newspaper  or  periodi- 
cal publication  to  be  selected  by  the  plaintiff  in  such  action,  a7ul  that  every  such  defend- 
ant shall,  upon  filing  such  plea,  be  at  liberty  to  2My  into  Court  a  sum  of  money 

by  way  of  amends  for  the  *  injury  sustained  by  the  'publication  of  such  libel,  *  675 
and  such  payment  into  Court  shall  be  of  the  same  effect  and  be  available  in  the 
same  manner  and  to  the  same  extent,  and  be  subject  to  the  same  rules  and  regulations  as 
to  payment  of  costs  and  the  form  of  pleading,  except  so  far  as  regards  the  pleading  of  the 
additional  facts  hereinbefore  required  to  be  pleaded  by  s-ach  defendant,  as  if  actions  for 
libel  had  not  been  excepted  from  the  personal  actions  in  which  it  is  lauful  to  pay  money 
into  Court  under  an  Act  passed  in  the  session  of  Parliament  held  in  the  fourth  year  of 
his  late  Majesty,  intituled  "An  Act  for  the  further  amendment  of  the  laio,  and  tJie  better 
advancement  of  justice,"  and  that  to  such  plea  to  such  action  it  shall  be  competent  to 
the  plaintiff  to  reply  generally  denying  the  whole  of  such  plea. 

3.  And  be  it  enacted,  that  if  any  person  shall  publish  or  threaten  to  publish  any 
libel  upon  any  other  person,  or  shall  directly  or  indirectly  threaten  to  print  or  publish 
or  shall  directly  or  indirectly  propose  to  abstain  from  printing  or  publishing,  or  shall 
directly  or  indirectly  offer  to  prevent  the  printing  or  publisliing,  of  any  matter  or  thing 
touching  any  other  person,  with  intent  to  extort  any  money  or  security  for  money, 
or  any  valuable  thing  from  sudh  or  any  other  person,  or  with  intent  to  induce  any  per- 
son to  confer  or  procure  for  any  person  any  appointment  or  office  of  profit  or  trust, 
every  such  offender,  on  being  convicted  thereof,  shall  be  liable  to  be  imprisoned,  with 
or  without  hard  labor,  in  the  common  gaol  or  house  of  correction,  for  any  tenn  not 
exceeding  three  years  :  Provided  always,  that  nothing  herein  contained  shall  in  any 
manner  alter  or  affect  any  law  now  iu  force  in  respect  of  the  sending  or  delivery  of 
threatening  letters  or  writings. 

681 


*  675  APPENDIX.    C.  ^■'^-  1S43.] 

4.  And  be  it  enacted,  that  if  any  person  shall  maliciousl}-  publish  any  defamatory 
libel,  knowing  the  same  to  be  false,  every  such  person,  being  convicted  thereof,  shall 
be  liable  to  be  imprisoned  in  the  common  gaol  or  house  of  correction  for  any  term  not 
exceeding  two  years,  and  to  pay  such  fine  as  the  Court  shall  award. 

5.  And  be  it  enacted,  that  if  any  person  shall  maliciously  publish  any  defamatory 
libel,  every  such  person,  being  convicted  thereof,  shall  be  liable  to  fine  or  imprison- 
ment or  both,  as  the  Court  may  award,  such  imprisonment  not  to  exceed  the  tenn  of 
one  year. 

6.  And  be  it  enacted,  that  on  the  trial  of  any  indictment  or  information  for  a  de- 
famatory libel,  the  defendant  having  pleaded  such  plea  as  hereinafter  mentioned,  the 
truth  of  the  matters  charged  may  be  inquired  into,  but  shall  not  amount  to  a  defence, 
unless  it  was  for  the  public  benefit  that  "the  said  matters  charged  should  be  iiublished, 
and  that  to  entitle  the  defendant  to  give  evidence  of  the  truth  of  such  matters  cliarged 
as  a  defence  to  such  indictment  or  information,  it  shall  be  necessary  for  the  defendant, 
in  pleading  to  the  said  indictment  or  information,  to  allege  the  truth  of  the  said  mat- 
ters charged  in  the  manner  now  required  in  pleading  a  justification  to  an  action  for  def- 
amation, and  further  to  allege  that  it  was  for  the  public  benefit  that  the  said  matters 
charged  should  be  published,  and  the  particular  fact  or  facts  by  reason  whereof  it  was 
for  the  public  benefit  that  the  said  matters  charged  should  be  published,  to  which  plea 

the  prosecutor  shall   be   at   liberty  to   reply  general]}-,  denying   the  whole 

*  676     thereof ;  and  that  if  after  *  such  plea  the  defendant  shall  be  convicted  on 

such  indictment  or  information,  it  shall  be  competent  to  the  Court,  in  pro- 
nouncing sentence,  to  consider  whether  the  guilt  of  the  defendant  is  aggravated  or  mit- 
igated by  the  said  plea,  and  by  the  evidence  given  to  prove  or  to  disprove  the  same  : 
Provided  always,  that  the  truth  of  the  matters  charged  in  the  alleged  libel  complained 
of  by  such  indictment  or  information  shall  in  no  case  be  inquired  into  without  such 
plea  of  justification  :  Provided  also,  that  in  addition  to  such  plea  it  shall  be  competent 
to  the  defendant  to  plead  a  plea  of  not  guilty :  Provided  also,  that  nothing  in  this  Act 
contained  shall  take  away  or  prejudice  any  defence  under  the  plea  of  not  guilty,  which 
it  is  now  competeiTt  to  the  defendant  to  make  under  such  plea  to  any  action  or  indict- 
ment, or  information,  for  defamatoiy  words  or  libel. 

7.  And  be  it  enacted,  that  whensoever,  upon  the  trial  of  any  indictment  or  informa- 
tion for  the  publication  of  a  libel,  under  the  plea  of  not  guilty,  evidence  shall  have 
been  given  which  shall  establish  a  presumptive  case  of  publication  against  the  defend- 
ant bv  the  act  of  any  other  person  by  his  authority,  it  shall  be  competent  to  such  de- 
fendant to  prove  that  such  publication  was  made  without  his  authority,  consent,  or 
knowledge,  and  that  the  said  publication  did  not  arise  from  want  of  due  care  or  caution 
on  his  part. 

8.  And  be  it  enacted,  that  in  the  case  of  any  indictment  or  information  by  a  private 
prosecutor  for  the  publication  of  any  defamatory  libel,  if  judgment  shall  be  given  for 
the  defendant,  he  shall  be  entitled  to  recover  from  the  prosecutor  the  costs  sustained 
by  the  said  defendant  by  reason  of  such  indictment  or  information  ;  and  that  upon  a 
special  plea  of  justification  to  such  indictment  or  information,  if  the  issue  be  found  for 
the  prosecutor,  he  shall  be  entitled  to  recover  from  the  defendant  the  costs  sustained 
by  the  prosecutor  by  reason  of  such  plea,  such  costs  so  to  be  recovered  by  the  defend- 
ant or  prosecutor  respectively  to  be  taxed  by  the  proper  officer  of  the  Court  before 
which  the  said  indictment  or  information  is  tried. 

9.  And  be  it  enacted,  that  wherever  throughout  this  Act,  in  describing  the  plaintitf 
or  the  defendant,  or  the  party  afi'ected  or  intended  to  be  aff'ected  by  the  ofience,  words 
are  used  importing  the  singular  number  or  the  masculine  gender  only,  yet  they  shall 
be  understood  to  include  several  persons  as  well  as  one  person,  and  females  as  well  as 

582 


A.D.  1S45.1  STATUTES.  *  676 

males,  unless  when  tlie  nature  of  the  provision  or  the  context  of  the  Act  shall  exclude 
such  construction. 

10 nothing  in  this  Act  contained  shall  extend  to  Scotland. 

[X.B.  —  The  words  in  italics,  in  s.  2,  were  repealed  by  the  Civil  Procedure  Acts 
Eepeal  Act,  1S79,  42  &  43  Vict.  c.  59,  Schedule,  part  II.] 


*  8  &  9  VICT.  c.  75. 


67: 


An  Act  to  amend  an  Act  x>asscd  in  the  Session  of  Parliament  held  in  the  Sixth  and 
Seventh  Years  of  the  reign  of  Her  incsent  Majesty,  intituled  ''An  Act  to  amend  the 
Law  respecting  Defamatory  words  and  Libel." 

[9,1st  July,  1845.] 

"Whereas  by  an  Act  passed  in  the  session  of  Parliament  held  in  the  sixth  and  sev- 
enth years  of  the  reign  of  her  present  ilajesty,  intituled  "  An  Act  to  amend  the  law 
respecting  defamatory  words  and  libel,"  it  is,  amongst  other  things,  enacted  and  pro- 
vided, that  the  defendant  in  an  action  for  a  libel  contained  in  any  public  newspaper  or 
other  periodical  publication  may  plead  certain  matters  therein  mentioned,  and  may 
upon  filing  such  plea  be  at  liberty  to  pay  into  Court  a  sum  of  money  by  way  of  amends 
for  the  injury  sustained  by  the  publication  of  such  libel,  and  it  is  thereby  further 
enacted,  that  such  payment  into  Court  shall  be  of  the  same  effect,  and  be  available  in 
the  same  manner  and  to  the  same  extent,  and  be  subject  to  the  same  rules  and  regula- 
tions as  to  payment  of  costs  and  the  form  of  pleading,  except  so  far  as  regards  the 
pleading  of  the  additional  facts  hereinbefore  required  to  be  pleaded  by  such  defendant, 
as  if  actions  for  libel  had  not  been  excepted  from  the  personal  actions  in  which  it  is 
lawful  to  pay  money  into  Court  under  an  Act  passed  in  the  session  of  Parliament  held 
in  the  fourth  year  of  his  late  Majesty,  intituled  "An  Act  for  the  further  amendment 
of  the  law  and  the  better  advancement  of  justice."  And  whereas  the  said  Act  of  the 
fourth  year  of  the  reign  of  his  late  Majesty  ndates  only  to  proceedings  in  the  Superior 
Courts  in  England,  but  by  an  Act  passed  in  the  session  of  Parliament  held  in  the  third 
and  fourth  years  of  the  reign  of  her  present  Jlajesty,  intituled  "An  Act  for  abolishing 
arrest  on  mesne  process  in  civil  actions,  except  in  certain  cases,  for  extending  the  reme- 
dies of  creditors  against  the  property  of  debtors,  and  for  the  further  advancement  of 
justice,  in  Ireland,"  a  like  provision  is  made  for  payment  of  money  into  Court  in  all 
personal  actions  pending  in  any  of  the  Superior  Courts  in  Ireland  as  is  contained  in 
the  said  Act  of  the  fourth  year  of  the  reign  of  his  late  Majesty  in  regard  to  actions 
pending  in  the  Superior  Courts  in  England,  with  a  like  exception  of  actions  for  libel, 
and  it  is  expedient  to  prevent  any  doubts  as  to  the  application  of  the  said  recited  Act 
of  the  sixth  and  seventh  years  of  the  reign  of  her  present  Majesty  to  actions  pending 
in  the  Superior  Courts  in  Ireland  which  may  be  created  by  reason  of  the  omission  of  a 
reference  in  the  last  mentioned  Act  to  the  said  Act  of  the  third  and  fourth  years  of  the 
reign  of  her  present  Majesty  :  Be  it  therefore  enacted  and  declared  by  the  Queen's  most 
excellent  Majesty,  by  and  with  the  advice  and  consent  of  the  lords  spiritual  antl  tem- 
poral, and  commons,  in  this  present  Parliament  assembled,  and  by  the  authority  of  the 
same,  that  when  in  any  action  pending  in  the  Superior  Courts  in  Irelantl  for  a  libel 
contained  in  any  public  newspaper  or  other  periodical  publication  the  defendant  shall 
plead  the  matters  allowed  to  be  pleaded  by  the  said  first-mentioned  Act,  and  shall  on 

683 


*  677  APPENDIX   C.  ■^•»-  1848.] 

filing  such  plea  pay  money  into  Court  as  provided  by  such  Act,  such  payment 
678  into  Court  shall  be  of  the  *same  effect,  and  be  available  in  the  same  manner 
and  to  the  same  extent,  and  be  subject  to  the  same  rules  and  regulations  now 
in  force  or  hereafter  to  be  made  as  to  pa}Tnent  of  costs  and  the  form  of  pleading,  except 
so  far  as  regards  the  pleading  of  the  additional  facts  so  required  to  be  pleaded  by  such 
defendant,  as  if  actions  for  libel  had  not  been  excepted  from  the  personal  actions  in 
which  it  is  lawful  to  pay  money  into  Court  under  the  said  recited  Act  of  the  third  and 
fourth  years  of  the  reign  of  her  present  ilajesty. 

2.  And  be  it  declared  and  enacted,  that  it  shall  not  be  competent  to  any  defendant 
in  such  action,  whether  in  England  or  in  Ireland,  to^  file  any  such  plea,  without  at  the 
same  time  making  a  payment  of  money  into  Court  by  way  of  amends  as  provided  by 
tlie  said  Act,  but  every  such  plea  so  filed  without  j)ayraent  of  money  into  Court  shall 
be  deemed  a  nullity,  and  may  be  treated  as  such  by  the  plaintiff  in  the  action. 

[X.  B.  — The  words  in  italics  in  s.  2  were'  repealed  by  the  Civil  Procedure  Acts 
Repeal  Act,  1879,  42  &  43  Vict.  c.  59,  Schedule,  part  11.  The  Statute  3  &  4  Vict, 
c.  105,  s.  46,  referred  to  in  s.  1  is  now  repealed  by  the  Stat.  Law  Rev.  Act,  1875.  See 
the  C.  L.  P.  A.,  1852  (15  &  16  Vict.  c.  76),  s.  70,  and  for  Ireland  16  &  17  Vict.  c.  113, 
s.  77  ;  ante,  pp.  491-4.] 


9  &  10  VICT.  c.  33. 

[July  21th,  1846.] 

S.  1.  It  shall  not  be  lawful  for  any  person  or  persons  to  commence,  prosecute, 
enter,  or  file,  or  cause  or  procure  to  be  commenced,  prosecuted,  entered,  or  filed,  any 
action,  bill,  plaint,  or  information  in  any  of  Her  Majesty's  courts,  or  before  any  justice 
or  justices  of  the  peace,  against  any, person  or  persons  for  the  discovery  of  any  fine 
which  may  hereafter  be  incurred  under  the  provisions  of  the  Act  of  the  thirty-ninth 
year  of  King  George  the  Third,  chapter  seventy-nine,  set  out  in  this  Act,  unless  the 
same  be  commenced,  prosecuted,  entered,  or  filed  in  the  name  of  Her  Majesty's  Attor- 
ney-General or  Solicitor-General  in  England,  or  Her  Majesty's  Advocate  in  Scotland, 
and  every  action,  bill,  plaint,  or  information  which  shall  be  commenced,  prosecuted, 
entered,  or  filed  in  the  name  or  names  of  any  other  person  or  i)ersons  than  is  in  that 
behalf  before  mentioned,  and  every  proceeding  thereupon  had,  shall  be  null  and  void 
to  all  intents  and  purposes. 

[N.B.  —  This  section  is  re-enacted  by  the  32  &  33  Vict.  c.  24,  Schedule  2.] 


11  &  12  VICT.  c.  12, 

An  Act  for  the  Better  Security  of  the  Crown  and  Goveryiment  of  the  United  Kingdom. 

[April  22nd,  1848.] 
S.  3.  If  any  person  whatsoever  after  the  passing  of  this  Act  shall,  within 
*  679  the  United  Kingdom  or  without,  compass,  imagine,  invent,  devise,  or  *  intend 
to  deprive  or  depose  our  most  Gracious  Lady  the  Queen,  her  heirs  or  sucessors, 
from  the  style,  honor,  or  royal  name  of  the  imperial  crown  of  the  United  Kingdom,  or 
of  any  other  of  Her  Majesty's  dominions  and  countries,  or  to  levy  war  against  Her 
Majesty,  her  heirs  or  successors,  within  any  part  of  the  United  Kingdom,  in  order  by 

584 


A.D.  1855.]  STATUTES.  *  679 

force  or  constraint  to  compel  her  or  them  to  change  her  or  their  measures  or  counsels, 
or  in  order  to  put  any  force  or  constraint  upon  or  in  order  to  intimidate  or  overawe  both 
Houses  or  either  House  of  Parliament,  or  to  move  or  stir  any  foreigner  or  stranger  with 
force  to  invade  the  United  Kingdom  or  any  other  Her  Majesty's  dominions  or  countries 
under  the  obeisance  of  Her  Majesty,  her  heirs  or  successors,  and  such  compassings, 
imaginations,  inventions,  devices,  or  intentions,  or  any  of  them,  shall  express,  utter, 
or  declare,  by  publishing  any  printing  or  writing  or  by  open  and  advised  speaking,  or 
by  an)'  overt  act  or  deed,  every  person  so  offending  shall  be  guilty  of  felony,  and  being 
convicted  thereof  shall  be  liable,  at  the  discrfetion  of  the  court,  to  be  transported  beyond 
the  seas  for  the  term  of  his  or  her  natural  life,  or  for  any  term  not  less  than  seven 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  without  hard 
labor,  as  tlie  Court  shall  direct. 

[N.B,  —  The  words  in  italics  were  not  in  the  36  Geo.  III.  c.  7.] 


COMMOJf  LAW  PEOCEDUEE  ACT. 

15  &  16  VICT.  c.  76. 

[June  20th,  1852.] 
S.  61.  Ix  actions  of  libel  and  slander  the  plaintiff  shall  be  at  liberty  to  aver  that 
the  words  or  matter  complained  of  were  used  in  a  defamatory  sense,  specifying  such 
defamatory  sense  without  any  prefatory  averment  to  show  how  such  words  or  matter 
were  used  in  that  sense  ;  and  such  averment  shall  be  put  in  issue  by  the  denial  of  the 
alleged  libel  or  slander  ;  and  where  the  words  or  matter  set  forth,  with  or  without  the 
alleged  meaning,  show  a  cause  of  action,  the  declaration  shall  be  sufficient. 


18  &  19  VICT.  c.  41. 


An  Act  for  abolishing  the  Jurisdiction  of  the  Ecclesiastical  Courts  of  England  and 
Wales  in  suits  for  Defamaiion. 

\2&th  June,  1855.] 

Whereas  the*  jurisdiction  of  the  ecclesiastical  courts  in  suits  for  defama- 
tion has  ceased  to  be  the  means  of  enforcing  the  spiritual  discipline  *of  the         680 
church,  and  has  become  grievous  and  oppressive  to  the  subjects  of  this  realm  : 
Be  it  therefore  enacted  by  the  Queen's  most  excellent  Majesty,  by  and  with  the  advice 
and  consent  of  the  lords  spiritual  and  temporal,  and  commons,  in  this  present  Parlia- 
ment assembled,  and  by  the  authority  of  the  same,  as  follows  :  — 

1.  From  and  after  the  passing  of  this  Act  it  shall  not  be  lawful  for  any  ecclesias- 
tical court  in  England  or  Wales  to  entertain  or  adjudicate  upon  any  suit  for  or  cause 
of  defamation,  any  statute,  law,  canon,  custom,  or  usage,  to  the  contrary  notwith- 
standing. 

585 


680  APPENDIX  C.  A.D.1857.] 


20  &  21  VICT.  c.  83. 

An  Act  for  more  effectually  preventing  the  Sale  of  Obscene  Books,  Pictures,  Prints,  and 

other  Articles. 

[25th  August,  1857.] 
Whereas  it  is  expedient  to  give  additional  powers  for  the  suppression  of  the  trade 
in  obscene  books,  prints,  drawings,  and  other  obscene  articles  :  Be  it  enacted  by  the 
Queen's  most  excellent  Majesty,  by  and  with  the  advice  and  consent  of  tlie  Lords  spir- 
itual and  temporal,  and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same,  as  follows  :  — 

1.  It  shall  be  lawful  for  any  metropolitan  police  magistrate  or  other  stipendiary 
magistrate,  or  for  any  two  justices  of  the  peace,  upon  complaint  made  before  him  or 
them  upon  oath  that  the  complainant  has  reason  to  believe,  and  does  believe,  that  any 
obscene  books,  papers,  writings,  prints,  pictures,  drawings,  or  other  representations 
are  kept  in  any  house,  shop,  room,  or  other  place  within  the  limits  of  the  juris<liction 
of  any  such  magistrate  or  justices,  for  the  purpose  of  sale  or  distribution,  exhibition 
for  purposes  of  gain,  lending  upon  hire,  or  being  otherwise  published  for  purposes  of 
gain,  which  complainant  shall  also  state  upon  oath  that  one  or  more  articles  of  the  like 
character  have  been  sold,  distributed,  exhibited,  lent,  or  otherwise  published  as  afore- 
said, at  or  in  connection  with  such  place,  so  as  to  satisfy  such  magistrate  or  justices 
that  the  belief  of  the  said  complainant  is  well  founded,  and  upon  such  magistrate  or 
justices  being  also  satisfied  that  any  of  such  articles  so  kept  for  any  of  the  purposes 
aforesaid  are  of  such  a  character  and  description  that  the  publication  of  them  would 
be  a  misdemeanor,  and  proper  to  be  prosecuted  as  such,  to  give  authority  by  special 
warrant  to  any  constable  or  police  officer  into  such  house,  shop,  room,  or  other  place, 
with  such  assistance  as  may  be  necessary,  to  enter  in  the  daytime,  and,  if  necessary, 
to  use  force,  by  breaking  open  doors  or  otherwise,  and  to  search  for  and  seize  all  such 
books,  papers,  writings,  prints,  pictures,  drawings,  or  other  representations  as  aforesaid 

found  in  such  house,  shop,  room,  or  other  place,  and  to  carry  all  the  articles  so 
*  681     seized  before  the  magistrate  or  justices  issuing  the  said  warrant,  or  some  *  other 

magistrate  or  justices  exercising  the  same  jurisdiction  ;  and  such  magistrate 
or  justices  shall  thereupon  issue  a  summons  calling  upon  the  occupier  of  the  house  or 
other  place  which  may  have  been  so  entered  by  virtue  of  the  said  warrant  to  appear 
within  seven  days  before  such  police  or  stipendiary  magistrate  or  any  two  justices  in 
petty  sessions- for  the  district,  to  show  cause  why  the  articles  so.  seized  should  not  be 
destroyed  ;  and  if  such  occupier  or  some  other  person  claiming  to  be  the  owner  of  the 
said  articles  shall  not  appear  within  the  time  aforesaid,  or  shall  appear,  and  such  magis- 
trate or  justices  shall  be  satisfied  that  such  articles  or  any  of  them  are  of  the  character 
stated  in  the  warrant,  and  that  such  or  any  of  them  have  been  kept  for  any  of  the 
purposes  aforesaid,  it  shall  be  lawful  for  the  said  magistrate  or  justices,  and  he  or  they 
are  hereby  required,  to  order  the  articles  so  seized,  except  such  of  them  as  he  or  they 
may  consider  necessary  to  be  preserved  as  evidence  in  some  further  proceeding,  to  be 
destroyed  at  the  expiration  of  the  time  hereinafter  allowed  for  lodging  an  appeal, 
unless  notice  of  appeal  as  hereinafter  mentioned  be  given,  and  such  articles  shall  be 
in  the  mean  time  impounded  ;  and  if  such  magistrate  or  justices  shall  be  satisfied  that 
the  articles  seized  are  not  of  the  character  stated  in  the  warrant,  or  have  not  been  kept 
for  any  of  the  purposes  aforesaid,  he  or  they  shall  forthwith  direct  them  to  be  restored 
to  the  occupier  of  the  house  or  other  place  in  which  they  were  seized. 

2.  iSo  plaintiff  shall  recover  in  any  action  for  any  irregularity,  trespass,  or  other 
wrongful  proceeding  made  or  committed  in  the  execution  of  this  Act,  or  in,  under,  or 

586 


A.u.  ISGO.]  STATUTES.  *  G81 

by  virtue  of  anj'  authority  hereby  given,  if  tender  of  sufficient  amends  shall  have  been 
made  by  or  on  behalf  of  the  party  who  shall  have  committed  such  irregularity,  trespass, 
or  other  wrongful  proceeding  before  such  action  brought  ;  and  in  case  no  tender  shall 
have  been  made,  it  shall  be  lawful  for  the  defendant  in  any  such  action,  by  leave  of 
the  Court  where  such  action  shall  depend,  at  any  time  before  issue  joined,  to  pay 
into  Court  such  sum  of  money  as  he  shall  think  fit ;  whereupon  such  proceeding,  order, 
and  adjudication  shall  be  had  and  made  in  and  by  such  Court  as  in  other  actions  where 
defendants  are  allowed  to  pay  money  into  Court. 

3.  No  action,  suit,  or  information,  or  any  other  proceeding,  of  what  nature  soever, 
shall  be  brought  against  any  person  for  anythiug  done  or  omitted  to  be  done  in  pursu- 
ance of  this  Act,  or  in  the  execution  of  the  authorities  under  this  Act,  unless  notice  in 
writino-  shall  be  given  by  tlie  party  intending  to  prosecute  such  action,  suit,  informa- 
tion or  other  proceeding,  to  the  intended  defendant,  one  calendar  month  at  least  before 
prosecuting  the  same,  nor  unless  such  action,  suit,  information,  or  other  proceeding 
shall  be  brought  or  commenced  within  three  calendar  months  next  after  the  act  of 
omission  complained  of,  or  in  case  there  shall  be  a  continuation  of  damage,  then  within 
three  calendar  months  next  after  the  doing  such  damage  shall  have  ceased. 

4.  Any  person  aggrieved  by  any  act  or  detemiination  of  such  magistrate  or  justices 
in  or  concerning  the  execution  of  this  Act,  may  appeal  to  the  next  general  or 
(piarter  sessions  for  the  county,  riding,  division,  city,  *  borough,  or  place  in  *  G82 
and  for  which  such  magistrate  or  justices  shall  have  so  acted,  giving  to  the 
magistrate  or  justices  of  the  peace,  whose  act  or  determination  shall  be  appealed  against, 
notice  in  writing  of  such  appeal  and  of  the  grounds  thereof,  within  seven  days  after 
such  act  and  determination  and  before  the  next  general  or  quarter  sessions,  and  enter- 
ing within  such  seven  days  into  a  recognizance,  with  suflicient  surety,  before  a  justice 
of  the  peace  for  the  county,  city,  borough,  or  place  in  Mhich  such  act  or  determination 
shall  have  taken  place,  personally  to  appear  and  prosecute  such  a[ipeal,  and  to  abide 
the  order  of  and  pay  such  costs  as  shall  be  awarded  by  such  court  of  quarter  sessions  or 
any  adjournment  thereof ;  and  the  Court  at  such  general  or  quarter  sessions  shall  hear 
and  determine  the  matter  of  such  appeal,  and  shall  make  such  order  therein  as  shall  to 
the  said  Court  seem  meet ;  and  such  Court,  upon  hearing  and  finally  determining  such 
appeal,  shall  and  may,  according  to  their  discretion,  award  such  costs  to  the  party  ap- 
pealing or  appealed  against  as  they  shall  think  proper  ;  and  if  such  appeal  be  dismissed 
or  decided  against  the  appellant  or  be  not  prosecuted,  such  Court  may  order  the  articles 
seized  forthwith  to  be  destroyed  :  Provided  always,  that  it  shall  not  be  lawful  for  the 
appellant  on  the  hearing  of  any  such  appeal  to  go  into  or  give  evidence  of  any  other 
grounds  of  appeal  against  any  such  order,  act,  or  deternunatiou,  than  those  set  forth 
in  such  notice  of  appeal. 

5.  This  act  shall  not  extend  to  Scotland. 


23  &  24  VICT.  c.  32. 


An  Act  to  abolish  the  Jurisdicfion  of  the  Ecclesiastical  Courts  in  Irclnnd  in  Cases  of  Def- 
amation, &c.  [<^«^y  3''^.  I860.] 

[N.B.  —  The  portions  of  this  Act  which  refer  to  the  jurisdiction  of  tlic  Ecclesiastical 
Courts  in  Ireland  are  now  repealed  as  unnecessary  by  the  Stat.  Rev.  Act,  1875,  38  & 
39  Vict.  c.  66.  For  the  Ecclesiastical  Courts  themselves  are  altogether  abolished  by 
32  &  33  Vict.  c.  42,  s.  21  ;  and  on  January  1st,  1871,  the  Ecclesiastical  law  of  hvland 
ceased  to  exist  as  law.] 

687 


*  682  APPENDIX  C.  A-D-  1880.] 

BUEIAL  LAWS  AMENDMENT  ACT,  1880. 

43  &  44  VICT.  c.  41. 

[Sept.  7th,  1880.] 
S.  7.  All  bm-ials  under  this  Act,  whether  with  or  without  a  religious  service,  shall 
he  conducted  in  a  decent  and  orderly  manner  ;  and  every  person  guilty  of  any  riotous, 
violent  or  indecent  behavior  at  any  burial  under  this  Act,  or  wilfully  obstruct- 
*  683     i^o  s^"^^  burial  or  any  such  service  as  *  aforesaid  thereat,  or  who  shall,  in  any 
such  churchyard  or  graveyard  as  aforesaid,  deliver  any  address,  not  being 
part  of  or  incidental  to  a  religious  service  permitted  by  this  Act,  and  not  otherwise  per- 
mitted by  any  lawful  authority,  or  who  shall,  under  color  of  any  religious  services  or 
otherwise,  in  any  such  churchyard  or  graveyard,  wilfully  endeavor  to  bring  into  con- 
tempt or  obloquy  the  Christian  religion,  or  the  belief  or  worship  of  any  church  or 
denomination  of  Christians,  or  the  members  or  any  minister  of  any  such  chui'ch  or 
denomination,  or  any  other  person,  shall  be  guilty  of  a  misdemeanor. 

588 


GENERAL   INDEX. 


A. 

ABATEMENT  OF  ACTION,  352,  355 

"  ABORTION,"  54,  n. 

ABSOLUTE  PRIVILEGE,  185-196 

(i.)  Parliamentary  proceedings,  186 
(ii.)  Judicial  proceedings,  188 

words  spoken  by  a  judge,  188 
words  spoken  by  counsel,  190 
■words  spoken  by  a  witness,  191 
(iii.)  Naval  and  military  affairs,  194 

ABUSE, 

mere  general  words  of,  18,  109 

ACCESSORIES 

to  the  publication  of  a  libel,  576 

ACCIDENTAL   PUBLICATION, 

civil  liability  for,  6,  153,  154,  387 
criminal  liability  for,  385,  387 

ACCORD  AND  SATISFACTION, 
plea  of,  489 

ACTION, 

how  commenced,  453 
within  what  time,  455 
and  in  what  Court,  453 
•  letter  before,  453 
notice  of,  453 
considerations  before,  449 
consolidation  of,  466 
previous,  456,  490 
joinder  of  causes  of,  458 
who  may  maintain,  344,  372,  452 
proceedings  in,  are  privileged,  188-193 
on  the  case  for  words,  87-92 
for  acts  injurious  to  reputation,  without  express  words, 

ACTIONABLE  PER  SE, 

what  language  is,  18,  53-81 

what  language  is  not,  82-87,  253,  308 


590  GENERAL  INDEX. 

ACTS, 

reputation  may  be  affected  by,  8,  148,"  149 

ADMINISTRATION   OF  JUSTICE, 

bonajide  comments  on,  44-46 
publications  reflecting  on,  426-448 

ADMINISTRATORS, 

right  of  action  does  not  pass  to,  355 

ADMISSION 

by  defendant,  effect  of,  534 

ADMONITION, 

Communications  by  way  of,  239 

ADULTERY, 

words  imputing,  59,  84 
to  a  physician,  66,  83 
to  a  clergyman,  64,  66 
to  a  married  woman,  85,  86 
law  on  this  point  considered,  86,  87 

"  ADVENTURER," 

charge  of  being,  libellous,  22 

ADVERTISEMENT 

in  newsj^aper,  when  privileged,  225 

of  tradesmen,  may  be  criticised,  34,  50,  51 

of  cure,  may  be  criticised,  50,  51 

ADVICE, 

when  privileged,  215,  239 
on  evidence,  524 

ADVOCATES, 

privilege  of,  190 

reports  of  speeches  of,  250-253 

publication  in  vindication  of  character  assailed  by,  230 

AFFAIRS   OF    STATE 

may  be  criticised,  42-44 

AFFIDAVIT, 

defamatoiy  statements  in,  privileged,  191,  192 
in  answer  to  interrogatories,  511  • 

further  and  better  answer,  519 

on  applications  for  leave  to  file  criminal  informations,  591 
in  aggravation  of  punishment,  589 
in  mitigation  of  punishment,  589 
AGENT 

and  principal,  358 

publication  of  libel  by  master  through  agency  of  servants,  362,  385 

principal's  orders  no  defence,  359 

evidence  of  authority  to  publish,  364,  365 

ratification,  361  ' 

innocently  publishing  a  libel,  153,  154,  359,  387 

ignorant  of  the  contents  of  the  paper,  387,  583 


GENERAL  INDEX.  591 

AGGRAVATIXG  CIRCUMSTANCES 

must  be  justified,  169 

AGGRAVATION  OF  DAMAGES, 
■wide  circulation  of  libel,  298 
malice,  296 

by  plea  of  justification,  178,  274,  485,  542 
by  injudicious  cross-examination  of  plaintiff,  542,  547 
plaintiff's  good  character,  298 

AGGRAVATION   OF  PUNISHMENT, 

affidavits  in,  589 

AGREEMENT 

to  accept  the  publication  of  mutual  apologies,  489 
to  compromise,  550 

ALIENS,  356 

ALLEGORY 

may  be  a  libel,  8,  98,  130,  384 

AMBASSADORS, 

foreign,  libels  on,  383 

"  AMBI-DEXTER,"  75 

AMBIGUOUS  EXPRESSIONS, 

rule  of  construction  as  to,  93,  n.,  107-115 

evidence  as  to  meaning  of,  539,  548 

meaning  as  ascribed  by  innuendo,  must  be  adhered  to,  102 

AMENDMENT 

of  pleadings,  498 

at  the  trial,  537,  545 

of  variances  between  words  laid  and  those  proved,  471,  536-537,  545 

on  argument  of  demurrer,  478 

of  indictment,  577 

of  information,  595 

ANAGRAM 

may  be  a  libel,  8 

ANATHEMA,  242,  n. 
ANGER  —  See  Provocatiox 

ANONYMOUS  LETTER, 

shown  confidentially,  207 

opinion  as  to  handwriting  of,  when  privileged,  237 

ANSWERS 

to  interrogatories,  511 
further  and  better,  515 

APOLOGY,  299,  487 

jury  to  judge  of  sufficiency  of,  300,  560 

notice  of  intention  to  give  evidence  of,  488,  621 

statutory  plea  of,  for  libel  in  a  newspaper,  299,  487 

form  of  plea  of,  488 

any  other  plea  may  be  pleaded  at  the  same  time,  487 


692  GENERAL  INDEX. 

APPEAL, 

proceedings  in  the  Court  of,  561 
from  County  Court,  509 

APPEALS 

to  the  public,  may  be  criticised,  50-52 

APPEARANCE,  462 

APPENDICES, 

A.  Appendix  of  Precedents  of  Pleadings,  Sfc,  596-661 

Contents,  596 

I.    Precedents  of  pleadings  in  actions  for  libel,  600 
II.    Precedents  of  pleadings  in  actions  of  slander,  621 

III.  Precedents  of  pleadings  in  actions  of  slander  of  title,  634 

IV.  Forms  of  pleadings,  notices,  &c.,  in  the  County  Court,  644 
V.    Precedents  of  criminal  pleadings,  049 

B.  Report  of  the  Select  Committee  of  the  House  of  Commons  on  the  Law  of 

Libel,  662 

C.  Appendix  of  Statutes,  664-683 

Contents,  664 

APPORTIONMENT 

of  costs  of  issues,  338 

ARBITRATION, 

costs  where  cause  referred  to,  338 

ARCHBISHOP, 

language  concerning,  28 

ARCHITECT, 

criticisms  on  the  works  of,  49,  68,  172,  601 

ARGUMENT 

of  the  rule  for  a  criminal  information,  593 

ARRESt  OF  JUDGMENT, 

motion  for,  in  civil  cases,  96,  118,  554 
in  criminal  cases,  586,  587 
ARSON, 

charge  of,  114,  125 

ARTIST, 

criticism  on  the  pictures  and  works  of,  48,  49 
ART-MASTER, 
libel  on,  25 

ASSAULT 

with  intent  to  rob,  charge  of,  actionable,  55 

ASTERISKS, 

put  for  plaintiff's  name,  130,  582 

ATTACHMENT 

for  contempt,  433 

ATTEMPT 

to  commit  a  felony,  charge  of,  actionable,  55,  57 
words  sufficient  to  impute,  123 


GENEEAL  INDEX.  593 

ATTORNEY, 

slander  of,  65,  74,  75 

libels  on,  6,  7,  29,  30,  99 

plaintiif,  proof  of  qualification,  530,  531 

acting  as  advocate,  privilege  of,  190 

not  liable  for  objecting  to  title,  142,  226 

bill  of  costs  of,  not  a  judicial  proceeding,  193 

AUCTIONEER, 

words  concerning,  67,  80 

libellous  notice  to,  by  person  interested  in  proceeds  of  sale,  226 

audita:  querela, 

proceedings  by,  abolished,  554 

AUTERFOIS  ACQUIT, 
plea  of,  576 

AUTERFOIS  CONVICT, 
plea  of,  576 

AUTHOR 

liable  as  publisher,  155  * 

criticisms  of  works  of,  48 

AUTHORITY 

given  to  another  to  publish  a  libel,  360-365 

when  implied,  360 

ratification,  361 

in  criminal  cases,  362,  885 

AVERMENTS, 

when  necessary,  118,  120 

in  civil  cases,  need  not  be  proved,  473 

except  of  plaintiff's  office  or  trade,  530 

in  indictments  and  criminal  informations,  introductory  averments  still 

necessary,  575 
of  special  intent,  376,  575 

B. 

BACON,  LORD, 

his  "  Use  of  the  Law,"  cited,  19 

"BAD  WOMAN,"  84,  n. 

BAIL 

for  appearance  to  take  trial,  573 

BANKER, 

refusing  to  honor  a  check,  8 

circulation  of  rumor  that  bank  had  stopped  payment,  206,  282,  369 

refusing  to  accept  check  of  a  particular  bank,  26,  236 

BANKRUPT 

can  sue  for  libel  or  slander,  354 
charges  against,  by  trustee,  privileged,  235,  281 
38 


594  GENERAL  INDEX. 

BANKRUPTCY, 

words  imputing,  7,  31 

proceedings  before  registrar,  reports  of,  privileged,  248 

charge  of  having  committed  act  of,  226,  235 

BARRISTER, 

slander  of,  74 
libels  on,  29 

slander  by,  in  legal  proceedings  absolutely  privileged,  190 
libel  by,  in  law-book,  6 

criminal  information  against  County  Court  Judge  for  refusing  to  hear, 
382 

BASTARD, 

imputation  that  heir-apparent  is,  139,  140 
charge  of  having  had  a  bastard  child  not  actionable,  85 
except  formerly  under  18  Elizabeth,  c.  3,  58 

BAWD, 

charge  of  being  a,  not  actionable,  except  in  London  and  Southwark, 
84,  85  ^ 

BAWDY  HOUSE, 

charge  of  keeping,  is  actionable,  56,  113,  n.,  131 

BEGIN, 

right  to,  always  with  plaintiff,  530 

BELIEF 

in  truth  of  charge  no  justification,  169,  n. 
in  truth  of  charge,  necessary  to  privilege,  199 
in  truth,  in  mitigation,  302,  589 
hearsay  is  probable  ground  for,  214,  278 

BIGAMY, 

what  words  amount  to  a  charge  of,  123 
charge  of,  is  actionable,  55 

BILL   OF  EXCEPTIONS,  551 

"BLACK-LEG," 

meaning  of,  24,  61 

charge  of  being,  not  actionable,  83 

"  BLACK-LIST," 

libel  on  a  trader  in,  249 

"  BLACK-SHEEP," 

meaning  of,  24,  61 

BLASPHEMOUS  WORDS,  394-403 
defined,  394 

intent  to  bring  religion  into  contempt,  395 
honest  advocacy  of  heretical  opinions,  396 
justification  not  allowed,  398 
statutory  provisions,  400 
Jurisdiction  of  Ecclesiastical  Courts,  402 


GENERAL   INDEX.  595 

BLASPHEMOUS  ^YOB.T)S,— continued. 

reports  of  proceedings  in  Courts  of  Justice  as  to,  are  not  privileged, 

249,  399 
punishment,  394 

Common  Law  not  affected  by  statutes,  401 
limitation  of  prosecutions  for,  401 
Scotcli  Law  as  to,  394 

BOARD   OF  GUARDIANS, 

reports  of  meetings  of,  not  privileged,  260 

BONA  fide  COMMENT, 
no  libel,  34-52 
plea  of,  483,  605,  618,  619 

BONA  FIDES 

of  defendant,  199 

BOOK, 

reviews  and  criticisms  of,  48,  49 

in  Latin,  161,  386 

libellous,  sale  of  by  bookseller's  servant,  160,  362 

obscene,  statute  for  preventing  sale  of,  405 

BOOKSELLER, 
libel  on,  34 
liability  of,  for  sale  of  libellous  book,  160,  362,  386 

BREACH  OF  PEACE, 
libels  tend  to,  3,  373 

BRIBERY, 

words  imputing,  actionable,  56 

in  offices  of  public  trust,  64,  71 

imputations  of,  in  report  by  political  committee,  43 

contempt  of  Court  by  offering  a  bribe  to  a  judge,  429 

BROTHEL, 

imputation  of  keeping,  8,  56,  131 

"  BUNGLER," 

spoken  of  an  artificer,  is  actionable,  65 

'«  BUNTER,"  111 

BURGLARY, 

charge  of,  actionable,  55 

BURNING 

in  effigy,  9 

BUSINESS, 

slander  of  persons  in,  65,  77-81 
libels  of  persons  in  way  of,  31 

BUTCHER, 

words  concerning,  80,  236 

BYSTANDER 

at  inquest,  remarks  of,  not  privileged,  191,  254 


696  GENERAL  INDEX. 

c. 

CALLING, 

words  injuring  plaintiff  in  the  way  of  his,  when  written,  22,  27-34 
when  spoken,  65,  77-81 

CANDIDATE 

for  office,  words  concerning,  236,  241 

CANT,  or  SLANG  TERMS,  110,  538 

CAPTAIN   OF   SHIP, 

words  concerning,  217 

CARICATURE, 

libel  by  means  of,  8,  22 

CARPENTER, 

words  concerning,  67 

CAUSES  OF  ACTION, 
joinder  of,  458 

CAUTION 

to  tradesmen,  when  privileged,  215,  218 

CENSORSHIP   QF   PLAYS,  13 
CENSORSHIP   OF  THE  PRESS,  9-12 

CENSURE, 

words  of,  by  a  judge,  187,  189 

CENTRAL   CRIMINAL   COURT,  579 

CERTAINTY, 

how  ensured  formerly,  118 
early  technicalities,  118 
of  the  imputation,  120 
criminal  charges,  121 
indirect  imputations,  125 
as  to  person  defamed,  127 

CERTIORARI 

for  removal  of  indictment  for  libel,  578 
costs  when  indictment  removed  by,  590 

CHALK-MARK 

may  be  a  libel,  8 

CHALLENGE   TO   FIGHT, 

sending,  a  misdemeanor,  377 

CHANCERY,   COURT  OF, 

contempts  of,  429,  448 

CHANGE   OF   VENUE,  528 

CHARACTER, 

plaintiff's  good  character,  298 

plaintiff's  bad  character,  304 

proof  of  plaintiff's  special,  530 

of  servant, /)r/m« /uci'e,  privileged,  200 

honajide  communications  as  to,  203-219 


GENEEAL  INDEX.  597 

CHARACTER  —  continued. 

master  not  bound  to  give,  201 

evidence  of  good,  not  receivable  unless  impeached,  275,  298 

evidence  of  plaintiff's  bad,  304 

evidence  for  defendant  as  to,  on  trial  of  indictment  or  information,  584, 

589 
of  witnesses,  evidence  to  impeach,  546 

CHARGE 

of  crime  must  be  precise,  121-127 

of  attempt  to  commit  a  crime,  55,  123 

of  an  impossible  crime,  61 

of  being  a  felon,  58,  171,  603  ( 

of  being  a  returned  convict,  179 

to  a  constable  in  his  character  as  such,  204,  267 

CHARITABLE  INSTITUTION, 

criticisms  on  officers  of,  47,  238,  239 
trustees  of,  words  concerning,  28,  370,  377 
private,  not  to  be  criticised,  47 

CHASTITY, 

charge  of  want  of,  not  actionable,  84,  85 

actionable  if  in  writing,  24 

"  CHEAT," 

charge  of  being  a,  not  actionable,  61,  80 

CHEATING, 

charge  of,  libellous,  24,  25 

in  way  of  trade,  actionable,  80 

CHECK, 

action  for  dishonoring,  8 

CHILD, 

liability  of,  352 

parent  not  answerable  for  wrongs  by,  361 

CHOICE  OF  COURT,  453 

CHRISTIANITY, 

publications  against,  394-402 
part  of  the  common  law,  397 

CHURCH  DISCIPLINE, 

words  spoken  in,  236,  n. 

CHURCHWARDEN, 
slander  of,  62 

CIRCULARS 

of  tradesmen,  may  be  criticised,  50,  51 

CIRCULATION    OF   LIBEL, 

extent  and  mode  of,  282,  293 

CIVIL  REMEDY   FOR  DEFAMATION,  9,  390 


# 


598  GENEEAL  IXDEX. 

CLAIM, 

statement  of,  469-474 

by  husband  for  words  defamatory  of  wife,  347 

by  wife  alone,  465 

joint  and  several,  365,  369,  465 

CLASS, 

religious  order  or  community,  libels  on,  376,  377,  381 

CLERGYMEN, 

words  affecting  them  in  office,  28,  47,  64,  217,  219,  628 

charges  of  incontinency  and  immorality  against,  66,  72,  73 

deprivation  of  office  the  ground  of  action,  72 

plaintiff  must  hold  benefice  or  office  at  the  time  of  the  slander,  72 

slander  by,  in  sermon,  &c.,  6,  242 

libels  by,  on  schoolmaster  in  parish,  268 

general  reflections  on  the  clergy  of  a  particular  diocese,  382 

CLERK, 

w'ords  concerning,  77,  285,  629 
to  vestry,  words  concerning,  29 
to  justices,  words  concerning,  29 

words  by,  not  privileged,  190 

CLUBS, 

"blackballed,"  23 
notice  posted  in,  25 

COINING, 

charge  of,  58,  622 

COLLOQUIUM 

or  application  of  the  slander,  118 
provisions  of  C.  L.  P.  Act  as  to,  120 

COLONIAL  COURTS, 

power  of,  to  commit  for  contempts,  438 

COLONIAL   LEGISLATIVE    ASSEMBLIES, 
power  of,  to  commit  for  contempt,  425 

COMMANDS 

of  master  no  defence  to  servant,  359 

COMMENTS, 

on  matters  of  public  interest,  34-52 

every  citizen  has  a  right  to  make,  35.  36 

not  privileged  in  the  strict  sense  of  that  term,  35,  36 

on  matters  of  local  interest,  41,  42 

bad  motives  must  not  be  recklessly  imputed,  37,  39 

honest  belief  in  truth  of,  not  alone  sufficient,  38 

limits  on,  36-41 

affairs  of  State,  42-44 

trials  in  law  courts,  44-46 

local  institutions  and  authorities,  46,  47 

parochial  charity,  47 

ecclesiastical  affairs,  47,  48 


GENERAL  INDEX.  699 

COMMENTS  —  continued. 

books  and  pictures,  48,  49 
architecture,  48,  49,  68,  172 
theatres  and  concerts,  49 
public  entertainments,  49,  50 
appeals  to  the  public  notice,  50-52 
advertisements  and  circulars,  50,  51 
controversy  in  newspapers,  50-52,  228,  229 
plea  of,  48''3,  605,  618,  619 

COMMISSION 

to  examine  witnesses,  527 

COMMITTEE 

of  charity,  communications  to,  238,  239 

COM^IODITIES 

of  tradesmen,  verbal  imputations  upon,  79,  145 

libel  on,  32,  145-148 
"  COMMON   FILCHER," 

not  actionable,  61 

COMMONS,   HOUSE  OF, 

libels  on,  422 
contempts  of,  423 

COMPANIES 

and  corporations,  367-369 

may  sue  for  slander  of  title,  368 

may  sue.  a  shareholder  for  libel,  32 

proceedings  of,  at  meeting  of  shareholders,  privileged,  235,  242 

COMPARISON 

of  handwriting,  533,  580 

COMPETITION 

between  rival  traders,  31,  145 

COMPROMISE 

in  civil  case,  550 

not  allowed  in  criminal  cases,  596  « 

CONCERTS 

may  be  criticised,  49 

CONDITION 

in  life  of  plaintiff,  293 

CONDUCT, 

unfeeling,  charge  of,  libellous,  24 

CONFESSION 

of  publication,  534 

CONFIDENTIAL   COiMMUNICATIONS, 
when  privileged,  203-219 

CONFIDENTIAL  RELATION, 

defined,  210 


600  GENERAL  INDEX. 

COXFLICT  OF  LAWS,  54,  n. 

CONSIDERATIONS 

before  writ,  449 
for  defendant,  465 

CONSOLIDATION 
of  actions,  466 

CONSORTIUM, 
loss  of,  312 

CONSPIRACY, 

charge  of,  actionable,  56 

CONSTABLES, 

words  concerning,  237,  285 

words  spoken  on  giving  in  charge  of,  are  privileged,  204,  267 

CONSTITUTION, 

libels  against  the,  419-421 

CONSTRUCTION,  93-132 

what  meaning  the  speaker  intended  to  convey  is  immaterial,  93,  548 
libel  or  no  libel  is  a  question  for  the  jury,  27,  94,  550,  557 
duty  of  the  Judge,  94,  540,  544 
words  not  to  be  construed  in  mitiori  sensu,  95 
jury  to  consider  the  words  as  a  whole,  98,  551 

when  evidence  may  be  given  of  other  defamatory  publications  by  de- 
fendant of  plaintiff,  99,  272,  545 
of  the  innuendo,  100,  538 

the  words  must  be  set  out  verbatim  in  the  statement  of  claim,  101,  470 
words  clearly  defamatory,  105 
words  prima  facie  defamatory,  107 
neutral  words,  109 
words  prima  facie  innocent,  112 
ironical  words,  114,  116,  539 
words  clearly  innocent,  110 
after  verdict,  558,  586 

CONTAGIOUS   DISEASE, 

charge  of  having,  62,  63,  624 

CONTEMPTIBLE, 

words  rendering  plaintiff,  libellous,  21,  22 

CONTEMPTS 

of  the  King,  413,  414 

of  the  Government,  415-419 

of  Parliament,  may  be  dealt  with  in  the  law  courts,  422 

how  punished  by  the  House  of  Lords,  423 

how  by  the  House  of  Commons,  423 

the  propriety  of  committal  by,  cannot  be  questioned  in  courts  of 
law,  424 
of  Colonial  Legislative  Assemblies,  424 

their  power  to  exclude,  425 


GENERAL   INDEX.  601 

CO'^TE^l'PTS,— continued. 

of  courts  of  law  and  judges,  426 
of  Superior  Courts,  426 

proceedings  against  offenders  for  contempts,  428 

Judge  at  Cli ambers,  437,  438 

attachment  and  committal,  433 

publications  prejudicial  to  fair  trial  of  action,  429 

injunctions  to  restrain,  13,  436. 

Scotch  law  as  to,  436 
of  Inferior  Courts  of  record,  440 

no  power  to  commit  except  for  those  committed  in  face  of  Court,  412 

statutory  powers,  445-447 

county  courts,  442,  445 
of  Inferior  Courts  not  of  record,  444 

sureties  for  good  behavior,  444 
of  ecclesiastical  comis,  448 

CONTRACTS 

as  to  libels  cannot  be  enforced,  374  — 

CONTRIBUTION, 

none  between  -wrong-doers,  157,  374 

CONTROVERSY 

in  the  newspapers,  50-52,  228,  229 

"CONVICTED   FELON," 
actionable,  58,  171,  603 

CONVICTION, 

summary  before  justices,  reports  of,  243-248 

proof  of,  546 

placards  notifying,  at  railway  stations,  173,  179 

COPYING  LIBELS 

from  one  newspaper  into  another,  100,  302,  549,  584 

COPYRIGHT, 

none  in  immoral  or  libellous  work,  374 

CORONER, 

defamatory  statement  by,  on  inquest,  189 
has  power  to  eject  disturber,  442 

CORPORATIONS 

may  sue  for  libel,  32,  367 

may  sue  for  slander  of  title,  368 

may  be  sued  for  libel,  368 

not  for  slander,  368 

may  be  sued  for  acts  of  agents,  368 

criminally  liable,  369 

discovery  against,  by  interrogatories,  501 

CORRUPTION 

in  office,  charge  of,  27,  28,  64,  71,  n.,  427 


602  GENERAL  INDEX. 

COSTS,  334-343 

now  follow  the  event,  334 

all  early  statutes  as  to  costs  repealed  by  Judicature  Act,  835 

application  to  deprive  successful  plaintiff  of  costs,  336 

of  new  trial,  338 

apportionment  of  costs  of  issues,  338 

after  payment  into  court,  340 

of  counterclaim,  341 

security  for,  466,  553,  590 

practice  as  to  asking  for,  337,  553 

married  woman  liable  for,  553 
•  special  costs,  337,  553 

in  actions  remitted  to  County  Court,  343,  468,  569 

in  local  Court  of  Record,  569 

on  writ  of  inquiry,  337,  464 

jury  not  to  consider  question  of  costs,  295 

of  indictment,  590 

of  criminal  information,  595 

COUNSEL, 

privilege  of,  190 

reports  of  speeches  of,  made  in  courts  of  justice,  250-253 

COUNTERFEITING,  55 

COUNTS 

in  an  indictment,  576,  587 

COUNTERCLAIM,  307,  494 
costs  of,  341 

COUNTY, 

proof  of  publication  within,  581 

COUNTY  COURT, 

no  jurisdiction  of  actions  for  slander  or  libel,  except  by  consent,  453 

remitting  action  to,  468 

subsequent  proceedings,  565 

discoveries  and  interrogatories  in,  568 

jury,  568 

taxation  of  costs  in,  343,  468,  569 

contempts  of,  442,  445 

criminal  information  ajjainst  judge  of,  382 

forms  of  precedents,  notices,  &c.,  644-648 

COURT, 

selection  of,  453 

payment  into,  491 

Divisional,  proceedings  in,  554-561 

of  Appeal,  proceedings  in,  561-565 

proceedings  in  County  Court,  565 

COURTS  MARTIAL, 

defamatory  statements  made  in  course  of  proceedings  by,  189,  194 


GENERAL   INDEX.  603 

COURTS  OF  JUSTICE, 

publication  of  proceedings  of,  187 

contempts  of  Superior  Courts  of  Record,  428 

Colonial  Courts,  438 

Inferior  Courts  of  Record,  440 

proceedings  in  County  Court,  565 

other  inferior,  569. 

COURTS  OF  PETTY  SESSION, 

defamatory  statements  made  in  the  regular  course  of  proceedings  at, 

privileged,  188 
reports  of  proceedings,  privileged,  243-248 

"  COZENER," 

charge  of  being,  not  actionable,  61 

CREDIT 

of  traders,  libels  affecting,  30-32 

words  affecting,  7,  78,  79 

CRIME, 

libel  is,  slander  is  not  a,  4,  373 

words  conveying  direct  charge  of,  actionable,  54 

statement  that  plaintiff  had  been  accused  of  crime,  24,  57 

words  not  necessarily  imputing,  actionable  if  written,  21,  22 

imputation  must  be  specific,  121-127 

words  of  suspicion  only,  57 

imputing  the  murder  of  a  person  yet  alive,  61 

attempting  to  commit,  55,  57,  123 

solicitation  or  hiring  to  commit,  56 

justification  as  to  charge  of  committing,  178,  548 

proof  of  conviction,  546,  548 

CRIMINAL  INFORMATION 

for  libel,  380-383 

discretion  of  the  court  as  to  granting,  380 

proceedings  in,  591-596 

forms  of,  649,  651 

CRIMINAL   LAW,  373-393 

law  common  to  all  criminal  cases,  383 

publication  of  a  libel  by  one  unconscious  of  its  contents,  384 
I.  Criminal  remedy  by  indictment,  9,  375 

special  intent,  when  necessary,  376 

punishment  at  common  law,  378 

statutes,  379 
II.  Criminal  remedy  by  information,  380 

libels  on  foreign  ambassadors,  &c.,  383 
considerations  as  to  criminal  proceedings  for  libel,  390 
suggestion  of  the  Select  Committee  of  the  House  of  Commons,  391 

CRIMINAL   LIABILITY 

of  a  married  woman,  351 

of  an  infant,  353 

of  master  or  principal,  362,  385 

of  a  corporation,  369 


604  GENERAL  INDEX. 

CRBIINAL  PLEADINGS, 

precedents  of,  619-661 

"  CRITIC," 

defined,  36 

CRITICISM, 

right  of,  31-52 

distinguished  from  defamation,  36,  37 

of  public  men  and  institutions,  42-47 

must  be  fair  and  bona  fide.  38,  39 

on  public  entertainments,  &c.,  49-52 

of  books,  pictures,  and  architecture,  48,  49 

ridicule  of  author  permitted,  48 

CROWN   CASES   RESERVED, 

Court  for  consideration  of,  585,  587 

CRUELTY, 

charge  of,  libellous,  24,  607 

"CUCKOLD," 

charge  of  being,  is  not  actionable,  84 

CUSTOM, 

loss  of,  as  special  damage,  310 

evidence  as  to  loss  of,  314,  315,  319 

of  London,  as  to  charge  of  whoredom,  59,  84 

CUSTOMERS, 

complaints  by,  privileged,  226 


D. 

DAMAGES,  289-333 

general  and  special  damage  defined  and  distinguished,  289 
I.  General  Damages,  291 

general  loss  of  custom,  203 
II.    Evidence  for  the  Plaintiff  in  Aggravation  of  Damages. 
(i)  malice,  296 

(ii)  extent  of  publication,  298 
(iii)  plaintiff's  good  character,  298 
in.    Evidence  for  the  Defendant  in  Mitigation  of  Damages. 
(i)  apology  and  amends,  299 
(ii)  absence  of  malice,  301 

conflicting  cases  on  this  point,  303 
(iii)  evidence  of  the  plaintiff's  bad  character,  304 
(ir)  plaintiff's  previous  conduct  in  provoking  the  publication, 

306. 
(v)  absence  of  special  damage,  308 
TV.    Special  Damage  ivhere  the  words  are  not  actionable  per  se,  18,  308 
what  constitutes  special  damage,  309 
special  damage  must  be  specially  pleaded,  313 
special  damage  subsequently  arising,  317 
V.    Special  Damage  where  the  words  are  actionable  per  se,  318 


GENERAL  INDEX.  605 

DAMAGES  —  continued. 

VI.   Remoteness  of  Damages,  321 

damage  resulting  to  the  husband  of  the  female  plaintiff,  323 

damage  caused  by  the  act  of  a  third  party,  325 

not  essential  that  such  third  person  should  beUeve  the  charge, 

327 
wrongful  and  spontaneous  act  of  a  third  person,  328 
originator  of  a  slander  not  liable  for  damage  caused  by  its  rep- 
etition, 329 
exceptions  to  this  rule,  331 
other  actions,  not  to  be  considered,  549 
vindictive,  292 
evidence  of,  542 

excessive,  nevsr  trial  on  ground  of,  291,  558 
inadequacy  of,  new  trial  on  ground  of,  559 
DANCING-MISTRESS, 

slander  of,  67 
"DAUB,"  40,  n. 
DEAD, 

libels  on  the,  375 

intent  must  be  proved,  376 

DEATH, 

charge  of  being  the  cause  of,  76,  122,  627 

'*  guilty  of  the  death  of  D."  is  actionable,  121 

of  party  to  action,  effect  of,  355 
DEBATES  IN  PARLIAMENT, 

reports  of,  257 
DEBT, 

unfounded  claim  of,  lona  fide  dispute  as  to,  8,  9 
DECREES  OF   STAR  CHAMBER, 

regulating  the  Press,  10,  11,  13,  14 
DEERSTEALING, 

charge  of,  actionable,  59 
DEFAMATION, 

defined,  17 

jurisdiction  of  Ecclesiastical  Courts  abolished,  17,  59,  86 
DEFAMATORY  WORDS, 

defined,  1,  17 

classified,  17-92 
DEFAULT, 

judgment  by,  463 

judgment  in,  of  pleading,  495 

in  pleading,  500 

in  making  discovery,  522 
"DEFAULTER," 

charge  of  being,  libellous,  24,  29 

DEFENCE 

that  words  are  not  defamatory,  483 
justification,  169-181,  485 


606  GENERAL  INDEX. 

DEFENCE  —  continued. 

privilege,  484 

absolute  privilege,  186-196 

qualified  privilege,  196-263 

infancy,  no  defence,  353 

insanity,  no  defence,  354 

master's  commands  no  defence,  359 

statement  of,  475,  480^95 

accord  and  satisfaction,  489 

Statute  of  Limitations,  455,  490 

previous  proceedings,  457,  490 

apology,  487 

payment  into  court,  491 

other  defences,  490  ^ 

all  may  be  pleaded  together,  480 

justification  in  criminal  cases,  178,  388,  650,  660 

innocent  publication,  153,  359,  387,  617. 

publication  to  plaintiff  only,  383  , 

evidence  for  the,  582 
DEFENDANT, 

married  woman,  350 

matters  to  be  considered  by  the,  465 

may  be  called  by  plaintiff,  534 

evidence  for,  545 

DEFENDANTS, 

who  are  liable  as,  344-372 

joint,  371 

no  contribution  between  or  indemnity  to,  157,  374 

DEFINITION 

of  libel,  7,  21 

of  slander,  7,  53 

of  defamatory  words,  1,  17,  36 

of  reputation,  150, 

of  confidential  relationship,  210 

of  malice,  265,  267 

of  publication,  150 
DEMANDING  MONEY  WITH   MENACES, 

charge  of,  actionable,  55 
DE  MINIMIS  NON  CURAT  LEX,  18,  20 

DEMURRER 

to  statement  of  claim,  475 

where  words  are  not  susceptible  of  any  defamatory  meaning,  26 

informal,  496 

to  statement  of  defence,  497 

when  to  demur,  475 

points  on,  578,  637 

to  an  indictment,  577,  659 

to  a  plea  of  justification,  577,  661 

joinder  in,  637,  659,  6Q1 

precedents,  606,  636,  659 


GENERAL  INDEX.  607 

"DIFFICULTIES," 

charge  of  being  in,  libellous,  23,  31 

DISCOVERY 

of  documents,  515 

what  documents  are  privileged  from,  517-519 

state  papers,  519 

by  interrogatories,  500-515 

further  and  better  affidavit,  519 

inspection  of  documents,  520 

default  in  making,  522 

DISEASE,   INFECTIOUS  OR  CONTAGIOUS, 
charge  of  having,  G2,  63,  624 

DISHONESTY, 

charge  of,  is  actionable,  if  written,  21,  22,  32 

imputation  of,  in  giving  character  of  servant,  203,  268,  275 

DISINHERISON, 

words  tending  to,  139 

DISSENTING  MINISTER, 
words  concerning,  28 

DISTRICT  REGISTRY,  454 

DIVORCE, 

assertions  that  husband  is  seeking,  a  libel  on  wife,  24 

DOCUMENTS, 

discovery  of,  515-522 
inspection  of,  520 

DOUBTFUL   MEANING, 

words  of,  107-115,  539,  548,  586 

DRUNKARD, 

charge  of  being  a,  actionable,  66 

DUEL, 

challenge  to  fight  a,  377 

"  DUNCE," 

actionable,  if  spoken  of  a  lawyer,  39,  n.,  68 

DUTY, 

as  ground  of  privilege,  198-233 
may  be  moral  or  social,  198 

E. 

ECCLESIASTICAL   AFFAIRS 
may  be  criticised,  47,  48 

ECCLESIASTICAL  COURTS, 

jurisdiction  of,  in  cases  of  defamation,  59,  85,  403 

abolislied,  17,  59,  86 
law  of,  how  far  part  of  English  Common  Law,  402,  403 
contempts  of,  448 


608  GENERAL  INDEX. 

EDITOR  OF  NEWSPAPER, 

words  concerning,  30 

may  commeut  on  matters  of  public  interest,  34-52 
joint  liability  for  publication  of  libel,  157,  261 
liability  to  proprietor,  157,  374 

EFFIGY, 

libel  by  means  of,  7,  8,  22 

burning  in,  9 

assertion  that  plaintiff  had  been  hung  in,  25 

EMBEZZLEMENT, 

words  imputing,  actionable,  55,  62,  124 

EMPLOYER, 

liability  of,  860,  362,  385 

EMPLOYMENT, 

loss  of,  is  special  damage,  310 

ENDORSEMENT    ON   WRIT,  459 

ENGAGEMENT, 

notice  of  termination  of,  not  libellous,  25 

ENGINEER, 

libel  on,  33 

ENTRY   FOR  TRIAL,  522 

EQUITY,  COURTS   OF, 

no  jurisdiction  over  libels  except  as  contempts,  13,  454 

ERROR, 

writ  of,  abolished,  in  civil  cases,  551 
in  criminal  cases,  587 

ESTOPPEL, 

plea  by  way  of,  490 

ETIQUETTE, 

charge  of  a  breach  of,  not  actionable,  29 

EVENT, 

costs  to  follow,  334 

EVIDENCE 

1.    In  civil  cases,  449-570 

advice  on,  524 
of  appointment  to  office,  &c.,  530 
of  publication,  531 
as  to  innuendo,  538 
as  to  the  libel,  535 
secondary,  536 

as  to  speaking  the  slander,  537 
of  plaintiff's  good  reputation,  298 
that  the  words  refer  to  plaintiff,  540 

that  the  words  were  spoken  of  him  in  the  way  of  his  trade,  541 
of  malice,  272-275,  485,  541 


"GENERAL  INDEX.  609 

EYIDEl^CE,— continued. 

of  other  libels  or  slanders,  272,  296,  545 
of  damage,  542 

of  plaintiff's  distress  of  mind,  312,  318 
of  loss  of  trade,  310-317 
as  to  handwriting,  533,  580 
of  admissions  by  defendant,  534 
of  personal  ill-will,  271 
for  defendant,  545 
of  privilege,  547 
of  a  justification,  169,  548 
of  an  apology,  209 
in  aggravation  of  damages,  296-298 
in  mitigation  of  damages,  301-308 
2.    In  criminal  cases, 

for  the  prosecution,  580 
for  the  defence,  582 

EXAGGERATION 

may  be  evidence  of  malice,  281 

EXAMINATION  OF   WITNESSES  BEFORE  TRIAL,  526 

EXCEPTIONS,  BILL   OF,  551 

EXCESS  ^ 

in  mode  and  extent  of  publication,  282 

EXCOMMUNICATED, 

charge  of  having  been,  is  actionable,  59 

EXCOMMUNICATION,  242,  n. 

EXECUTION, 

no  stay  of,  on  appeal,  564 

rule  nisi  for  new  trial  is  a  stay  of,  557 

EXECUTORS  AND   ADMINISTRATORS,  355 

EXEMPLARY   DAMAGES, 

when  allowed,  292 

EX  PARTE  PROCEEDINGS, 
reports  of,  244 

EXPERTS, 

evidence  of,  533 


F. 


FAIR  REPORT, 

what  is  meant  by,  250-256 
question  for  jury,  252 

"  FALLING    SICKNESS," 

charge  of  having,  62,  66,  74 

FALSE   BOOKS, 

charge  of  keeping,  80 

39 


610 


GENERAL  INDEX. 


FALSEHOOD, 

need  not  be  shown,  169 

of  the  commuuication,  may  be  evidence  of  express  malice,  274 
FALSE  IMPRISONMENT,  9 

FALSE  NEWS, 

devisers  of,  378 

FALSE  PRETENCES, 

charge  of  obtaining  a  horse  by,  123 

FALSE   WEIGHTS, 

charge  of  using,  80 

FEELINGS, 

injury  to,  309,  312,  318 

"FELON," 

charge  of  being  a,  is  actionable,  24,  58,  171,  603 
FELONY, 

what  amounts  to  a  charge  of,  120-127 
imputation  of,  actionable,  55 

FICTITIOUS   NAMES, 

use  of,  to  conceal  defamation,  129 

FIGURATIVE   EXPRESSIONS, 

libel  by,  106,  539 

FISHERY   ACTS, 

charge  of  offence  against,  not  actionable,  57 

FLOWER-SHOW 

may  be  criticised,  50 

FOREIGN   AMBASSADORS, 
libellous  reflections  on,  383 

FOREIGN  LANGUAGE, 

slander  or  libel  in,  109,  110,  470,  626 

FOREIGNER 

plaintiff,  secm-ity  for  costs  by,  356 
FORGERY, 

charge  of,  actionable,  55 

what  words  a  sufficient  charge  of,  60,  122 
FORMER  PROCEEDINGS,  456 

FORMER   RECOVERY, 

defence  of,  490 

FORMS, 

of  pleadings,  notices,  &c.,  in  the  County  Court,  644-648 

FORNICATION, 

charge  of,  not  actionable,  85 

FORSWORN, 

charge  of  being,  60,  123 


GENERAL  INDEX.  611 

FOX'S  LIBEL   ACT  (32  Geo.  III.  c.  60),  12,  94,  585,  667 

FOXES, 

charge  of  poisoning,  libellous,  25 

charge  of  shooting,  against  a  gamekeeper,  actionable,  77 

FRAUD, 

charge  of,  must  be  proved  to  the  letter,  225 
charge  of,  actionable,  if  written,  21 
if  spoken  in  way  of  trade,  32 
not  otherwise,  61 

FREEDOM 

of  the  press,  10,  416,  420,  436 

FROZEX   SNAKE, 

charge  of  being,  libellous,  22 
judicial  notice  of  meaning  of,  106,  539 

"FUDGE," 

afl&xed  to  a  newspaper  article,  100 

FURTHER  AND  BETTER  ANSWERS  TO  INTERROGATORIES,  515 
affidavit,  519 

G. 

GALLOWS 

may  be  a  libel  in  effigy,  8 

"  GAMBLER," 

not  actionable,  61 

«'  GANG   OF   THIEVES,"  122,  n. 

GENERAL  DAMAGES, 

defined  and  distinguished  from  special  damage,  289 
amount  entirely  in  discretion  of  jury,  291,  552 
on  each  count  separately,  295 

GENERAL  ISSUE, 

truth  not  admissible  under,  177,  n. 

abolished  in  civil  cases,  480 

on  trial  of  indictment  or  information,  577 

GENERAL  LOSS  OF   CUSTOM,  293 
GIRDLING   TREES,  54,  n. 

GIST 

of  an  action  of  slander,  18-21 

GONORRHOEA, 

charge  of  having,  is  actionable,  62 

GOOD  BEHAVIOR, 

binding  to,  378,  444,  574 

GOODS, 

slander  of  title  to.  79,  145 
libel  on,  32-34,  145-148 


612  GENEEAL  INDEX. 

GOVERNMENT, 

libels  against,  415-418 
patronage  may  be  criticised,  44 

GOVERNOR, 

official  publication  by,  privileged,  257 
communication  to,  privileged,  538 

GRAND  JURY, 

defamatory  presentment  by,  privileged,  191 

GUARDIANS,  BOARD   OF,  260 

GUARDIANS  OF  THE  POOR, 

words  concerning,  29 

GUNSMITH, 

Ubel  on,  33 

H. 

HANDBILL 

of  tradesman,  may  be. criticised,  34,  50,  51 

HANDWRITING, 

proof  of,  533,  580 

HATRED, 

words  exposing  plaintiff  to,  21,  22 

"HEALER   OF   FELONS," 

meaning  of,  114 

HEARSAY, 

sufficient  ground  for  honajide  belief,  214,  278 
HEIR, 

slander  of  title  of,  139 

HERESY, 

no  crime,  396 

"  HERMAPHRODITE," 

not  actionable,  54,  n.,  67 

HIEROGLYPHICS 

may  be  a  libel,  8 
"  HIRELING  MURDERER,"  55,  n. 

HISTORY, 

matters  of,  may  be  discussed,  377 

"  IIOCUSSED,"  102 

HOMCEOPATHIST, 

charge  of  meeting  in  consultation,  29 

HONORARY  OFFICE, 
words  of  one  in,  64 

HOSPITALITY, 

loss  of,  311,  324 


GENEKAL  INDEX.  613 

HOUSE  OF  COMMONS, 

report  of  Select  Committee  of,  662 
observations  ou  such  report,  261,  391,  531 

HUSBAND  AND  WIFE,  3i5 

one  in  law,  152 

claim  by  husband  for  words  defamatory  of  wife,  347 

married  woman  defendant,  350 

plea  that  plaintiffs  are  not,  491 

where  wife  has  obtained  a  protection  order,  346 

repetition  by  wife  to  husband  of  charge  aifecting  herself,  330,  332 

the  like  by  husband  to  wife  of  a  charge  affecting  others,  153,  332 

"HYPOCRITE," 

charge  of  being,  is  libellous,  22 

I. 

IGNORANCE, 

words  imputing,  28,  29 
n^LEGAL   OCCUPATION, 

action  for  slander  in  respect  of,  not  maintainable,  81 

ILLNESS, 

as  special  damage  arising  from  slander,  309,  312,  318 

IMMORALITY, 

charge  of,  if  written,  is  actionable,  21 

not  if  spoken,  81-87 

in  a  physician,  66 

in  a  clergj^man,  64,  66,  72 

«'  IMPOSTOR," 

charge  of  being,  is  libellous,  22,  39,  n. 
not  actionable,  if  spoken,  85 

IMPRIMA  TUR 

no  longer  necessary,  10,  11 
IMPUTATION 

of  crime  must  be  specific,  121-127 

INCOMPETENCY 
in  office,  27 

INCONSISTENT  PLEAS,  480,  n. 

INCONTINENCE, 

words  imputing,  to  unmarried  women,  85,  86 
to  married  women,  312 
to  clergymen,  66,  72 

INDECENT   PUBLICATIONS 

may  be  stopped  in  the  post,  407 

INDICTABLE   OFFENCE, 

imputation  of,  in  slander,  121-127 

INDICTMENT, 

for  libel,  574 


614  GENERAL  INDEX. 

INDICTMENT  —  con/inuerf.  .     . 

pleading  to  the,  576 
removal  of,  by  certiorari,  578 
averments,  575 
amending,  577 
costs  of  trial  of,  590 
forms  of,  654-658 

INFAMOUS  PUNISHMENT, 
what  is,  54 

INFANCY, 

no  defence,  353 

INFANTS,  352 

INFECTIOUS   DISEASE, 

imputations  of  having,  actionable,  21,  22,  624 

"INFERNAL  VILLAIN," 

libellous,  22 

INFORMATION, 

when  privileged,  though  volunteered,  213-219,  286 

INFORMATION,  CRIMINAL, 
for  libel,  380-383 
practice  on,  591-596 
forms  of,  649,  651 

INGRATITUDE, 

charge  of,  libellous,  23 

"  INHUMAN   STEPMOTHER,"  25,  n. 

INITIALS   OF   NAxME, 

libel  expressed  by,  130,  582 

INJUNCTION 

will  not  be  granted  to  restrain  publication  of  libel,  13-16,  436,  454 
except  after  verdict,  16 

to  restrain  premature  and  unfair  publication  of  proceedings  in  Chancery, 
436 

INJURIA    SINE  DAMNO,  17,  18 

INJURY  TO   REPUTATION, 

gist  of  action,  18-21 

INNKEEPER, 

libel  on,  34 
slander  of,  79 

INNOCENT  PUBLICATION,  6,  154,  384-387,  617 

INNUENDO, 

office  of,  100-117 

when  necessary,  109,  112,  116 

when  not  necessaiy,  105,  107 

drafting  the,  472 

evidence  as  to  the,  538 

plaintiff  bound  by,  102 


GElsERAL  INDEX.  615 

INQUTRY, 

communications  in  answer  to,  privileged,  203-207 
writ  of,  to  assess  damages,  464 

INSANITY, 

charge  of,  is  libellous,  23 
of  the  king,  414 
no  defence,  354 

INSINUATION, 
libel  by,  98 

INSOLVENCY, 

words  imputing,  23,  31,  78,  79 
acts  imputing,  8,  9 

INSPECTION  OF  DOCUMENTS,  520 

both  parties  may  now  obtain,  516 
INSTRUCTIONS  FOR   STATEMENT  OF   DEFENCE,  475 

INSULTING  LADIES, 

charge  of,  libellous,  22 

INTEGRITY, 

words  imputing  want  of,  70 

INTENTION 

without  overt  act,  no  crime,  57,  124 

of  defendant,  immaterial  in  civil  cases,  5-7,  264 

unless  occasion  privileged,  264,  266 

of  defendant,  in  criminal  cases,  immaterial,  388 

except  in  case  of  libel  on  dead,  &c. ,  376 

to  produce  natural  and  necessary  consequence  of  act,  presumed,  5 

INTERCOURSE 

of  friends,  of  husband,  loss  of,  words  tending  to  cause,  22,  312 

INTEREST, 

as  ground  of  privilege,  233-243 
'in  actions  for  slander  of  title,  141 
public,  matters  of,  maybe  criticised,  36-52 
where  large  body  of  persons  interested,  237 
persons  present  who  have  no  corresponding  interest,  239 

INTERROGATORIES,  500-517 

leave  to  administer,  when  necessary,  501 

tending  to  criminate,  504 

as  to  opponent's  case,  506 

what  allowed,  507 

striking  out,  509 

answer  to,  511 

what  defendant  may  refuse  to  answer,  512 

further  and  better  answers,  515 

INTOLERANCE, 

religious,  charge  of,  libellous,  23 

IRONICAL   PRAISE 

may  be  a  libel,  8,  23 


616  GENERAL  INDEX. 

IRONICAL  WORDS 

may  be  actionable,  8,  23,  116,  539 

must  be  alleged  to  have  been  so  spoken,  114,  539 

ISSUES,  SEVERAL, 

assessment  of  damages  on,  295 
apportionment  of  costs  of,  338-340 

ITCH, 

charge  of  having,  actionable,  if  written,  22 
not,  if  merely  spoken,  63 

J. 

"JACOBITE," 

charge  of  being,  121,  418,  421 

JEST, 

publication  of  libel  in,  no  defence,  6 

JOINDER 

of  causes  of  action,  458 
of  parties,  369,  371,452 

JOINT 

plaintiffs,  369 
defendants,  371 

JOINT   PUBLICATION 

of  written  language,  157,  328 

JOINT   STOCK  COMPANY, 

action  by,  367 

JOURNALIST, 

privileges  of,  36-41,  416,  420 
libels  on,  30 

JUDGE 

of  Superior  Court,  words  concerning,  426-439 

of  Inferior  Court,  words  concerning,  64,  440-448 

at  Chambers,  437 

remarks  by,  absolutely  privileged,  188 

private  letter  to,  not  privileged,  191,  237 

duty  of,  on  question  of  Libel  or  No  Libel,  94,  98 

on  uncontroverted  facts  to  decide  if  publication  is  privileged,  185 

when  to  nonsuit,  543 

summing-up,  550 

JUDGES'  CHAMBERS, 

reports  of  proceedings  in,  248 

JUDGMENT,  552 

in  suits  for  defamation  not  in  rem,  1,  n. 

in  default  of  pleading,  495 

by  default,  463 

proceedings  after,  554 

arrest  of,  96.  118,  554,  586,  587 


GENERAL  I^'DEX.  617 

JUDICIAL  XOTICE 

of  meanings  of  words,  &c.,  106,  116 

JUDICIAL   PROCEEDINGS, 

statements  made  in,  absolutely  privileged,  18S 

bond  fide  comments  on,  protected,  44 

private  letter  to  judge  is  not  privileged,  191,  237 

attorney's  bill  of  costs  is  not,  193 

voluntary  affidavit  is  not,  193 

Courts  martial,  189,  194 

counsel,  privilege  of,  190 

jury,  191 

■witnesses,  191 

affidavits,  &c.,  191 

reports  of,  243-257 

coram  non  Judice,  244 

ex  parte  proceedings,  244 

reports  must  be  fair  and  accurate,  250 

no  comments  should  be  interpolated,  254 

by  party  or  solicitor,  256,  257,  429,  430 

prohibited  reports,  249,  436 

JURISDICTION 

of  County  Court,  453,  468,  565 
of  Salford  Hundred  Court,  569 
of  Ecclesiastical  Courts  in  suits  for  defamation,  abolished,  17,  59,  86, 

403,  679 
none  to  restrain  by  injunction  the  publication  of  a  libel,  13-16,  436, 

454,  459 
of  quarter  sessions,  374,  404,  574 
removal  of  indictment  by  certiorari,  578 
summary,  of  justices  as  to  libels,  574 

JUROR, 

privilege  of,  191 
withdrawing  a,  550 

JURY, 

to  determine  whether  a  publication  be  a  libel  or  not,  16,  94,  98,  544, 

557 
to  decide  on  the  sufficiency  of  an  apology,  300,  560 
to  construe  the  libel,  26,  94 
to  determine  the  meaning  of  words,  94-117 
to  read  whole  of  libel,  27,  98,  551 
to  determine  truth  of  the  facts  charged,  169,  170 
must  assess  damages  once  for  all,  295,  317,  320,  552 
should  not  consider  the  question  of  costs,  295,  552 
not  to  be  dispensed  with,  454,  523,  568 
function  of,  in  prosecutions  for  libel,  585 
special,  528 

JUS  IN  REM, 

right  to  reputation,  1,  18 


618  GENERAL  INDEX. 

JUSTICE   OF   THE  PEACE, 

no  jurisdiction  in  libel,  574 

■words  by,  when  privileged,  188 

words  concerning,  64,  70,  72,  440,  441 

administration  of  the  law  by,  is  matter  of  public  interest,  45 

reports  of  proceedings  before,  243-248,  255 

cannot  commit  for  contempt,  444 

sureties  for  good  behavior,  444 

JUSTIFICATION,  169-181 

onus  of  proving  words  true  is  on  the  defendant,  169 

the  whole  libel  must  be  proved  true,  169 

the  rule  applies  to  all  reported  speeches  or  repetitions  of  slander,  173 

must  justify  the  pi'ecise  charge,  169 

heading  must  be  justified,  98,  99 

of  innuendo,  177 

must  be  proved  in  every  material  part,  170-174 

slight  immaterial  inaccuracy,  170 

of  part  only,  in  mitigation,  176,  306 

plea  of,  when  evidence  of  malice,  274,  485,  542 

must  be  specially  pleaded,  177,  485 

danger  of  pleading,  178,  274,  485,  623 

how  proved,  548 

Roman  law  as  to,  180 

forms  of  plea  of,  485,  605,  616,  624 

in  a  criminal  case,  178,  388 

not  permitted  at  Common  Law,  388 

under  Lord  Campbell's  Act,  389 

not  allowed  in  prosecutions  for  blasphemous,  obscene,  or  seditious  libels, 

388,  398,  414,  577 
form  of  plea  to  information  or  indictment,  650,  660 

K. 

KEEPING  A  BAWDY-HOUSE, 

charge  of,  actionable,  56 

KIDNAPPING,  55,  n. 
KILLING, 

charge  of,  actionable,  121,  627 

KING, 

libels  against  the,  413,  414 
petition  to,  privileged,  223 
words  cannot  amount  to  treason,  410 
denying  his  title  to  the  crown,  413 
disparaging  his  ministers,  415-419 

KNAVE, 

charged  of  clergyman,  66,  n. 

KNOWLEDGE 

of  defendant  that  his  words  were  false,  proof  positive  of  malice,  267,  274 
in  criminal  cases,  379,  580 


GENERAL  INDEX.  619 


L. 

LANDLORD 

and  tenant,  communications  between,  privileged,  217,  233,  236,  241 

LANDMARKS, 

charge  of  removing,  54,  n. 

LANGUAGE, 

construction  of,  93-117 

certainty  of,  118-132 

ambiguous,  107-116 

actionable  per  se,  21-81 

actionable  only  by  reason  of  special  damage,  82-92 

jury  to  determine  meaning  of,  26,  94,  98,  544,  550 

LARCENY, 

what  will  amount  to  a  charge  of,  61,  122 
charge  of,  actionable,  55,  57,  n. 
charged  on  young  child  actionable,  57,  n. 

LAW, 

ecclesiastical,  402 

LEAVE   TO   MOVE,  554 

LECTURES, 

contract  for  hire  of  rooms  for  delivery  of  blasphemous,  374,  399 

LEGISLATIVE    ASSEMBLIES, 
libels  on,  422-425 
petition  to,  is  privileged,  187 

LEPROSY, 

charge  of  having,  63 

LETTER, 

confidential,  not  privileged  from  inspection,  518 

before  action,  453 

post-marks  on,  533 

libels  by,  in  what  county  published,  581 

shown  confidentially,  207,  615 

threatening,  indictment  for,  377,  379 

LETTERS   PATENT, 

slander  of  title  to,  144 

LIBEL, 

defined,  1,  7,  21,  22 

malice  not  essential  to,  5-7,  264 

distinguished  from  slander,  3,  4 

action  for,  maintainable  without  proof  of  special  damage,  2-4 

is  criminal,  4,  56 

in  foreign  language,  110,  470,  574 

remedies  for,  civil  and  criminal,  9,  376,  390-393 

how  construed,  93-132 

or  no  libel,  pre-eminently  a  question  for  the  jury,  16,  94,  98,  557 

whole  to  be  looked  at,  27,  98,  551 


620  GENERAL  INDEX. 

LIBEL  —  continued. 

bona  fide  comment,  34-52,  483 

on  the  dead,  375 

proof  of  the,  535 

contract  for  printing,  cannot  be  enforced,  374 

blasphemous,  394-4U3 

obscene,  404-408 

seditious,  409-448 

precedents  of  pleadings  in  actions  for,  600-621 

LIBEL   ACT, 

32  Geo.  III.  c.  60  (Mr.  Fox's),  12,  94,  585,  586 

statute  in  full,  667 

6  &7  Vict.  c.  96  (Lord  Campbell's), 

s.  1,  299,  465,  568 

s.  2,  299,  301,  465,  487,  491,  497,  568 

s.  3,  379 

s.  4,  379,  572,  573,  580 

s.  5,  379,  390 

s.  6,  389,  576,  577,  589 

s.  7,  363,  364,  365,  385,  583 

s.  8,  590,  595,  596 
statute  in  full,  674,  675,  676 

"  LIBELLER," 

charge  of  being  a,  is  actionable,  30,  56 

"LIBELLOUS   JOURNALIST," 
charge  of  being  a,  30,  171 

LIBELLOUS   WORKS,  ' 
no  copyright  in,  374 

LIBERTY, 

of  the  press,  defined,  10,  416,  420 

history  of  growth  of,  9-12,  421 

not  to  be  restrained  by  injunction,  13-16,  436,  454,  459 

LICENSED   VICTUALLER, 

libel  on,  31,  102 
words  concerning,  79 

LIMITATIONS, 

statute  of,  455 

defence  under,  must  be  pleaded,  490 

LOCAL  INTEREST, 

matters  of,  may  be  criticised,  41,  46 

LORD   CHAMBERLAIN, 
control  over  plays,  13 

LUNATICS, 

liability  of,  264,  353 

M. 
MAGAZINE, 

joint  liability  of  editor  and  printer  for  libel  in,  361 


f 

GENERAL   INDEX.  621 

MAGISTRATES, 

language  concerning,  64,  70,  440,  441 

report  of  proceedings  before,  privileged,  243-248,  255 

cannot  commit  for  contempt,  444 

proceedings  before,  571 

MAIXTEXAXCE, 

loss  of,  by  wife,  as  special  damages,  324 

MALICE 

not  essential  to  the  action,  5-7,  2G4 

history  of,  6,  n, 

unless  occasion  privileged,  5,  266 

need  not  be  specifically  averred,  6,  n.,  267 

onus  of  proving  lies  on  the  plaintiff,  269 

proof  of  actual,  271-288,  541 

I.    Extrinsic  evidence  of,  271 

former  publications  by  defendant  of  plaintiff,  272,  541,  545 

former  quarrels,  271,  542 

acts  of  defendant  subsequent  to  publication,  273 

that  the  words  are  false  is  alone  no  evidence  of,  274 

that  defendant  knew  the  words  were  false,  is  evidence  of,  267 

274 
plea  of  justification,  274,  485,  542 
n.   Evidence  of,  derived  from  the  mode  and  extent  of  publication, 
the  terms  employed,  &c.,  277 
(i)  Where  the  expressions  employed  are  exaggerated  and  un- 
warrantable, 280 
(ii)  Where  the  mode  and  extent  of  publication  is  excessive,  282 
communications  volunteered,  286 
absence  of,  tends  to  mitigate  damages,  301 
in  actions  of  slander  of  title,  142-145 

maliciously  publishing  a  libel,  knowing  it  to  be  false,  379,  580 
malice  in  law  defined,  265,  267 
how  malice  in  fact  may  be  shown,  271,  n. 

MALICIOUS  PROSECUTIOX,  9 
MALPRACTICE, 

charged  on  a  physician,  76,  n. 
MAX   FRIDAY, 

charge  of  being,  not  actionable,  25 

judicial  notice  of  the  meaning  of  the  term,  114 
"MAX   OF   STRAW" 

libellous,  22 

MAXSLAUGHTER, 

charge  of,  actionable,  55,  608,  627 
MARRIAGE, 

loss  of,  as  special  damage,  309,  310,  474 
evidence  of  loss  of,  316 

MARRIED  WOMAX, 
libel  on,  24 


622  GENERAL  INDEX. 

MARRIED  WOMAX  —  continued. 
slander  of,  84-87,  312,  324 
charge  of  stealing  goods  of,  62,  96 
trader,  32,  346,  349 
as  plaintiff,  345 
as  defendant,  350 
rights  of  husband,  347 
criminal  liability  of  a,  351 

may  be  ordered  to  find  sureties  for  good  behavior,  378 
cannot  sue  her  husband  for  slander  or  libel,  346,  347 

MARRIED   WOMEN'S   PROPERTY   ACT,  346,  350 

MARRIED  WOMEN'S  PROPERTY  ACT  AMENDMENT  ACT,  351,  491 

MASTER 

and  servant,  358 

his  commands  no  defence  for  his  servant,  359 

liable  for  words  of  his  servant,  spoken  with  his  authority,  360 

ratification,  361 

giving  character  of  servant,  200-203,  268,  600 

criminal  liability  of,  362,  385 

defence  under  Lord  Campbell's  Act,  363-365,  385,  583 

MASTER   MARINER, 

charge  of  drunkenness  against,  actionable,  29,  215,  217 

MASTURBATION,  84,  n. 

MATTERS  OF  PUBLIC  INTEREST,  36-52 
what  are,  41,  42 

matters  of  local  interest  may  be,  41,  42 
affairs  of  state,  42-44 
parliamentary  proceedings,  42,  43 
administration  of  justice,  44-46 
public  authorities,  46,  47 
local  institutions,  46,  47  • 
parochial  charity,  47 
ecclesiastical  affairs,  47,  48 
unpublished  sermons,  47 
books,  48,  49 
pictures,  48,  49 
architecture,  48,  49 
theatres  and  concerts,  49 
public  balls  and  entertainments,  49,  50 
flower  show,  50 
appeals  to  the  public,  50-52 
advertisement  of  cure,  50,  51 
circulars  and  handbills  of  tradesmen,  50,  51 
cortroversies  in  the  newspapers,  50-52 
pei  ons  inviting  public  attention,  51,  52 

MAYOR, 

words  concerning,  28,  40,  440 
contempt  of,  440,  445 


GENEEAL  INDEX.  623 

ME  AXING 

of  words  is  a  question  for  the  jury,  93-117 

assigned  by  innuendo,  must  be  adhered  to,  102 

defendant  "may  justify  the  words  without  the,  177,  487,  634 

MEDICAL  MEN, 

slanders  on,  68,  76,  83,  627 

libels  on,  29,  31 

criticism  on  the  advertisements  of,  51,  173 

imputation  upon,  of  immorality,  66,  316 

proof  of  qualification  of,  530,  531 

MEETINGS, 

public,  reports  of  proceedings  at,  not  privileged,  260-263 

MEMBER   OF   PARLIAMENT, 

words  concerning,  71,  236,  304 
privilege  of  speech  of,  186,  236,  259 

MEMORIAL 

to  Home  Secretary,  222,  611 

MENTAL  DERANGEMENT, 

imputations  of,  23 

MENTAL  DISTRESS 

is  not  special  damage,  309,  312 

MERCHANTS, 

words  concerning,  77-81 
imputations  on  their  credit,  30,  78 
charge  of  keeping  false  account-books,  80 
imputations  on  their  goods,  32,  79,  145-148 

MERCHANT'S   CLERK, 

words  concerning,  124,  228 

MIDWIFE, 

words  concerning,  68 

MILITARY  AND  NAVAL  OFFICERS, 

reports  by,  privileged,  144 

MILITARY   OFFENCE,  54,  n. 

MINISTER, 

dissenting,  woi"ds  concerning,  28,  72,  73 
proof  of  special  damage  by,  316,  320 

MISCONDUCT, 

general,  charge  of,  actionable  only  if  written,  21 
in  trade,  charge  of,  is  actionable  always,  31,  80 

MISDEMEANOR, 

charges  of,  54,  56,  123,  124 

MISFEASANCE, 

charged  on  officer,  69,  n. 

MISJOINDER 

of  parties,  344 


624  GENERAL  INDEX. 

MISTAKE, 

publication  of  libel  by,  6,  153,  264,  387,  531 
MIS-TRIAL,  588 

MITIGATING  CIRCUMSTANCES, 

what  amount  to,  299-307 

(i)  apology  and  amends,  299 
(ii)  absence  of  malice,  301 

conflicting  cases  on  this  point,  303 
defendant's  belief  in  truth  of  charge,  302,  589 
(iii)  evidence  of  the  plaintiff's  bad  character,  304 
(iv)  plaintiff's  previous  conduct  in  provoking  the  publication,  306 
(v)  absence  of  special  damage,  308 
afl&davits  as  to,  receivable  in  criminal  cases,  589 

MITIORI  SENSU, 

construction  in,  93,  n.,  95-97 

MONEY, 

unfit  to  be  trusted  with,  charge  of  being,  actionable,  23 

MOTHER-IN-LAW, 

charge  of  suing  in  County  Court,  not  libellous,  25 

MOTIVE 

immaterial,  unless  occasion  privileged,  5-7,  264,  265 
in  criminal  cases,  376,  388 
wicked,  imputation  of,  libellous,  27 

MOTION 

for  judgment,  553 

non  obskuite  veredicto,  554 

in  arrest  of  judgment,  554,  586,  587 

for  a  new  trial,  in  a  civil  case,  105,  556 

in  a  criminal  case,  587 
for  a  rule  for  a  criminal  information,  591 

"MULATTO,"  54,  n. 

MURDER, 

charge  of,  actionable,  55,  608 

what  is  a  sufficient  charge  of,  121 

what  insufficient,  122 

charge  of,  explained  away  by  context,  108 


N. 

NAIVIE  AND  ADDRESS 

of  printer  and  his  employer,  12,  531,  532 

NAVAL   AND  MILITARY   OFFICERS, 
reports  by,  privileged,  144 

NEGRO, 

charge  of  being,  not  libellous  in  England,  25 

NEW  ASSIGNMENT,  496 


GENERAL  INDEX.  625 

NEWS, 

false,  fabrication  of,  378 

NEWSPAPER, 

proprietor,  liability  of,  7,  157,  261,  391,  392,  618 

criminal  liability  of,  3Gi,  365,  386 

libels  on,  30,  33 

cannot  sue  editor  for  contribution,  374 
editor/ liability  of,  157,  261,  391,  392 

libels  on,  30,  003 
printer  of,  12,  157,  361,  384,  618 
reporter,  duty  of,  245,  247,  254 
letters  written  to,  may  be  answered,  50-52 
how  much  may  be  read  in  evidence,  545 

not  justified  in  publishing  story  told  by  plaintiff  against  himseK,  6 
proof  of  publication  of,  531 
latitude  allowed  to  writers  in,  38,  39,  416,  420 
actionable  language  concerning,  30,  105 
imputation  that  it  has  a  small  circulation,  libellous,  30 
advertisement  in,  when  privileged,  225,  226 
statutory  provisions  relating  to,  12,  531 
statutory  plea  of  apology  for  libel  in,  299,  487,  621 
extent  of  circulation  of  libel  in,  increases  damage,  31,  157,  158 
discovery  of  proprietors,  printers,  and  publishers  of,  513,  514,  532,  619 
copying  libellous  articles  from  anotlier,  159,  302,  303,  584 
reports  in,  of  judicial  proceedings,  243-257 
reports  in,  of  debates  and  proceedings  of  parliament,  257-259 
reports  in,  of  public  meetings,  not  privileged,  260-263 
comments  in,  on  matters  of  public  interest,  34-52 
editor  not  bound  to  give  up  name  of  correspondent,  452-453 
publications  reflecting  on  suitors,  witnesses,  or  prisoners,  44,  249,  429, 
430,  436 

NEW  TRIAL, 

when  granted,  556-561 

application  for,  to  what  Court,  555,  557,  560 

perverse  finding  of  jury,  105,  558 

for  excessive  damages,  558 

for  insufficient  damages,  559 

surprise,  559 

verdict  against  weight  of  evidence,  557 

on  one  of  several  issues,  557 

costs  of,  to  follow  event,  560 

on  criminal  information  or  indictment  for  libel,  587,  588 

NOMINAL   DAMAGES, 

jury  not  limited  to  giving,  293 

NONJOINDER, 

of  parties,  344 

NONSUIT,  543 

no  action  can  be  brought  subsequently  for  same  cause,  545 

40 


626  GENERAL  INDEX. 

NOT  GUILTY, 

plea  of,  abolished  in  civil  cases,  480 
plea  of,  on  trial  of  indictment,  576,  577 

NOTICE 

to  auctioneer,  libel  in,  226 

of  exclusion  from  public  room,  25 

of  termination  of  engagement,  no  libel,  25 

that  defendant  will  not  accept  payment  in  cheques  on  plaintiff's  bank, 

25 
of  action,  453 

of  intention  to  adduce  evidence  of  apology  in  mitigation,  299,  488,  621 
to  produce,  526,  536 
to  inspect  and  admit,  526 
of  trial,  522 

o. 

OBSCENE  WORDS,  404-408 
test  of  obscenity,  404 

summary  proceedings  under  20  &  21  Vict.  c.  83,  405 
reports  of  proceedings  of  Courts  of  Justice  as  to,  not  privileged,  249, 407 
parties  aggrieved  may  appeal,  406 
no  copyright  in,  374 
as  to  sending  by  pqst,  407 

OCCASION 

of  publication  gives  rise  to  absolute  privilege,  186-196 
qualified  privilege,  196-263 

OCCUPATION 

of  plaintiff,  how  proved,  530 

libels  on  plaintiff  in  way  of,  27-33 

words  concerning  plaintiff  in  way  of,  77-81 

OFFICE, 

words  concerning  plaintiff  in  his,  actionable  whether  written,  22,  27-30 

or  spoken,  64-81 
proof  of  appointment  to,  530 

action  lies  whether  the  office  one  of  profit  or  not,  64 

distinction  between  imputation  of  want  of  ability  and  imputation 
of  want  of  integrity,  28,  70 

imputing  ignorance  in,  67,  68 
plaintiff  must  be  in  the  present  enjoyment  of,  in  slander,  69,  70 

not  so  in  libel,  27 
the  words  must  affect  plaintiff  in  his  office,  65 
imputing  corruption  to  officer  of  Court,  28,  71 
Judges  of  Superior  Court,  C4,  426 
Judges  of  Inferior  Court,  28,  40,  440 
justices  of  the  peace,  70,  71,  72,  440 
clergymen  and  ministers,  72,  73 
barristers-at-law,  74 
solicitors  and  attorneys,  74 
physicians  and  surgeons,  76 


GENERAL   IKDEX.  627 

OPINION, 

words  lowering  plaintiff  in  people's,  22 
of  expert  witnesses,  when  receivable,  533 

"  OPPRESSIVE   CONDUCT," 
charge  of,  libellous,  29 

OPTICIAN, 

libel  on,  31 

ORIGINATOR  OF  RUMOR 

may  escape  punishment,  166,  329 

OUTLAW 

action  by,  357 

civil  proceedings  in  outlawry,  now  abolished,  357 

OVERSEER, 

words  concerning,  28,  29,  229 
evidence  as  to  appointment  of,  530 

P. 

PAMPHLET, 

publication  of  report  of  trial  in,  251 

PARDON, 

crime  imputed  for  which  pardon  granted,  58,  497,  606 

PARENT, 

not  liable  for  acts  of  children,  361 

PARISH  MEETINGS, 

proceedings  at,  privileged,  234,  237 
reports  in  newspapers  of  proceedings  at,  260 

PARISH-  OFFICERS, 

words  affecting,  28,  29 
constable,  71,  237 
overseer,  28,  29,  229 
churchwarden,  62 
waywarden  of  a  district,  46 

PARLIAMENT, 

speeches  in,  absolutely  privileged,  186 

petition  to,  43,  187,  222,  259 

contempts  of  either  House,  422-425 

resolutions  of  House  of  Commons,  423 

power  of  commitment,  423 

Speaker's  warrant  not  to  be  too  closely  scrutinized,  423 

PARLIAMENTARY  DEBATES  AND  PROCEEDINGS, 

reports  of,  in  newspaper,  privileged,  257-259 

may  be  freely  commented  on  by  every  one,  35,  42,  43 

PARLIAMENTARY   PAPERS, 

liability  for  publication  of,  187 

statute  protecting  authorized  publication  of,  187,  672-674 


628  GENERAL  INDEX. 

PAROCHIAL 

affairs  may  be  matter  of  public  comment,  41,  42 
charity,  privately  organized,  may  not,  47 

PARTIALITY, 

charging  a  judge  with,  is  actionable,  28 

PARTICULARS 

of  statement  of  claim,  479,  608,  609,  625 
of  plea,  485,  486,  632 

PARTIES 

to  action,  344-372,  452 
misjoinder  of,  344 
non-joinder  of,  344 

1.  Husband  and  wife,  345 

claim  by  husband  for  words  defamatory  of  wife,  347 

married  woman  defendant,  350 

criminal  liability  of  a  married  woman,  351 

2.  Infants,  352 

3.  Lunatics,  353 

4.  Bankrupts,  354 

5.  Receivers,  355 

6.  Executors  and  administrators,  355 

7.  Aliens,  356 

8.  Master  and  servant  —  principal  and  agent,  358 

master's  commands  no  defence,  359 

principal  liable  for  words  spoken  by  his  authority,  360 

ratification,  361 

criminal  liability  of  master  or  principal,  362 

9.  Partners,  365 

10.  Corporations  and  companies,  3G7 

11.  Other  joint  plaintiffs,  369 

12.  Joint  defendants,  370 

PARTNERS 

in  trade,  words  imputing  insolvency  to  one  of,  81,  367 

libels  ou,  32 

service  of  writ  on,  461 

may  join  in  the  action,  365 

previous  recovery  against  one  partner,  457 

appear  in  their  own  name,  463 

PASSION.     See  Provocation 

PATENT, 

slander  of  title  to,  144 

PATRONAGE, 

Government,  may  be  criticised,  44 

PAWNBROKER, 

words  concerning,  111 

PAYMENT  INTO   COURT 

under  Lord  CampheWs  Act,  299-301,  487 
no  admission  of  liability,  300 


GENERAL  LKDEX.  629 


PAYMENT  INTO  COVRT  —  continued. 

form  of  plea,  488 

under  the  Judicature  Act,  491-494 

no  admission  of  liability,  493 

any  pleas  can  be- pleaded  at  same  time,  480,  493 

form  of  plea,  494,  630 
PECUNIARY  LOSS 

is  special  damage,  309 

when  essential  to  action,  18-21 
PEERS 

and  great  officers  of  the  realm,  slander  of,  133-136 

PENCIL  MARK 

may  be  a  libel,  7 
PERJURY, 

what  amounts  to  a  charge  of,  123 

charge  of  committing,  actionable,  24,  56 

charge  of  procuring  one  to  commit,  56,  130 

justification  of  charge,  123,  n. 
PERMANENT   MARK   OR   SIGN, 

if  scandalous,  a  libel,  3,  22 
PERSONS 

under  various  disabilities,  344-372 
PETITIONS 

for  redress  of  injuries,  privileged,  220-224 

to  Parliament,  are  privileged,  222,  259 

are  matters  of  public  interest,  43,  259 

to  the  Sovereign,  223 

PHYSICIAN, 

for  city,  40,  n. 

words  concerning,  68,  76 

libel  on,  29,  34 

imputation  of  adultery  to,  66,  83,  316 

malpractice  charged  upon,  76,  n. 

proof  of  qualification  of,  530,  531 

"  PICKPOCKET," 

charge  of  being  a,  is  actionable,  122 
PICTURES, 

libels  by,  3,  22,  24 

libellous,  public  exhibition  of,  374 

publicly  exhibited,  may  be  criticised,  48,  49 

PILLORY, 

punishment  of,  in  former  times,  394,  412 
PLACARD, 

on  wall,  proof  of,  536 
publication  by,  153,  283,  613 
PLACE 

of  trial,  change  of,  528 

of  publication,  how  far  material,  110,  581 


630  GENERAL  INDEX. 

PLAGUE, 

charge  of  having  the,  63 

PLAINTIFF, 

who  may  be,  344-372 

death  of,  355 

must  be  sufficiently  pointed  at  and  identified,  127,  540 

general  reputation  of,  298,  304 

conduct  of,  in  provoking  libel,  &c.,  306 

evidence  for,  530-542 

matters  to  be  considered  by,  449 

proof  that  the  words  refer  to,  127-132,  540 

special  character,  proof  of,  530 

joint  plaintiffs,  369 

infant,  352 

married  woman,  345 

PLEADINGS, 

In  Civil  Cases, 

statement  of  claim,  469-475 

joinder  of  causes  of  action,  458 

averments,  what  necessary,  118,  473,  531 

innuendo,  100,  107,  538 

colloquium,  118,  120 

special  damage,  138,  289,  308-333,  474 

venue,  474 

amendment  of,  498,  537,  545 

particulars,  479,  609,  625 

demurrer,  475,  606 

statement  of  defence,  480-494 

bad  for  uncertainty,  487 

counterclaim,  494 

reply,  496 

rejoinder,  498 

amendment  of,  498,  545 

default  in,  500 

variance,  471,  536,  537,  545 

precedents  of,  596-661 

in  actions  for  libel,  600-621 

of  slander,  621-634 
of  slander  of  title,  634-644 
In  Criminal  Cases, 

indictment,  574 

amendment  of,  577 

demurrer  to,  659 

forms  of,  654-658 

pleas,  576 

forms  of,  659 

replication  to  pleas,  660 

demurrer  to  plea,  577,  661 

justification  under  Lord  Campbell's  Act,  389,  576 

information,  595 


GENERAL  INDEX.  631 


PLEADIXGS  —  continued. 
amendment  of,  595 
form  of,  6i9,  651 
form  of  pleas  to,  650 
replication  to  pleas,  651 

POLICEMAN, 

slander  of,  189,  332 
words  published  to,  221 

POLITICAL  AUTHORS, 

privilege  as  to  writings  of,  88,  39,  416,  420 

POST-CARD, 

publication  of  libel  by,  avoids  privilege,  151,  283,  284 

POST-MARK, 

as  evidence  of  publication  in  a  particular  county,  581 

POST-MASTER, 

complaint  as  to,  217,  223 

POX, 

charge  of  having,  63 

PRACTICE  IN  CIVIL  CASES,  449-570 
considerations  before  writ,  449 
parties,  452 

letter  before  action,  453 
notice  of  action,  453 
choice  of  Court,  453 
district  registry,  454 
Statute  of  Limitations,  455,  490 
former  proceedings,  456 
joinder  of  causes  of  action,  458 
indorsement  on  writ,  459 
service  of  the  writ,  460 
appearance,  462 
judgment  by  default,  463 
matters  to  be  considered  by  the  defendant,  465 
security  for  costs,  466 
remitting  the  action  to  County  Court,  468 
subsequent  proceedings  in  County  Court,  566 
pleadings  (See  Pleadings),  469-498 
amending  pleadings,  498 
default  in  pleading,  500 
interrogatories,  500-515 

discovery  and  inspection  of  documents,  515-522 
default  in  making  discovery,  522 
notice  of  trial,  522 
entry  for  trial,  522 
advice  on  evidence,  524 
examination  of  witnesses  before  trial,  526 
special  jury,  528 
change  of  venue,  528 


632  GENERAL   INDEX. 

PRACTICE   IN   CIVIL   CASES  —  continued. 
trial,  529-553 
compromise,  550 
costs,  553 

proceedings  after  judgment,  554 
application  for  a  new  trial,  556 
proceedings  in  the  Court  of  Appeal,  561 
County  Court  proceedings,  565 
other  inferior  Courts,  569 

PRACTICE  IN  CRIMINAL  PROCEEDINGS  BY  WAY  OF  INDICT- 
MENT, 571-591 
proceedings  before  magistrates,  571 
indictment,  574 

pleading  to  the  indictment,  576 
certiorai'i,  578 

evidence  for  the  prosecution,  580 
evidence  for  the  defence,  582 
summing-up  and  verdict,  585 
proceedings  after  verdict,  585 
sentence,  589 
costs,  590 

PRACTICE   IN   PROCEEDINGS   BY  WAY  OF   CRIMINAL   INFOR- 
MATION, 591-596 
motion  for  the  rule,  591 
argument  of  the  rule,  593 
compromise,  594 
trial  and  costs,  595 

PRECEDENTS 

of  pleadings,  &c..  Appendix  A,  596-661 

in  actions  for  libel,  600-621 

in  actions  of  slander,  621-634 

in  actions  of  slander  of  title,  634-644 
of  criminal  pleadings,  649-661 

PREFATORY  AVERMENTS, 

as  to  traverse  and  denial  of,  452 
evidence  as  to,  531 

PREPONDERANCE  OF  EVIDENCE,  178 

PRESS, 

liberty  of,  defined,  10,  416,  420 
history  of  growth  of,  9-12,  421 
abuse  of  liberty  of,  10 
censorship  of,  9-12 

PREVIOUS   ACTIONS,  456,  490 

PREVIOUS   REPORTS   OR  RUMORS,  165,  231-238,  305,  306,  584 
if  lonajide  repeated  to  person  calumniated,  167,  217,  219 

PRIEST, 

words  spoken  by,  242 


GENEEAL   INDEX.  633 

PRIXCIPAL, 

liable  for  words  spoken  by  his  authority,  360 
criminal  liability  of  362,  385 

defence  under  Lord  Campbell's  Act,  363-365,  385,  583 
ratification,  361 
PRINTER, 

liability  of,  157,  361,  384 

to  print  his  name  and  address  on  every  publication,  12 
to  preserve  name  of  his  employer,  12 
cannot  recover  wages  for  printing  libellous  matter,  374 
PRINTING, 

libels  by,  3,  156-158 

prima  facie  evidence  of  publishing,  154,  155,  533 
a  libel  without  publication,  152,  386 
PRIVILEGED   OCCASIONS,  182-263 

defence  that  words  were  spoken  on  a  privileged  occasion,  182 
occasions  absolutely  privileged,  183 
occasions  on  which  the  privilege  is  qualified,  183 
the  Judge  to  decide  whether  occasion  is  privileged  or  not,  185 
presumption  of  privilege  rebutted  by  evidence  of  malice,  264-288 
I.    Occasioiis  absolutely  Privileged,  185-196 
(i)  Parliamentary  proceedings,  186 
(ii)  Judicial  proceedings,  188 

words  spoken  by  a  judge,  188 
words  spoken  by  counsel,  190 
words  spoken  by  a  witness,  191 
(iii)  Naval  and  military  affairs,  194 
11.    Qualified  Privilege,  196-263 

cases  of  qualified  privilege  classified,  196 

I.  Where  Circumstances  cast  upon  the  Defendant  the  Duty 

OF    MAKING   A    COMMUNICATION. 

(A.)    Communications  made  in  pursuance  of  a  Duty  owed  to  So- 
ciety, 198 
duty  may  be  moral  or  social,  198 
(i)  Characters  of  servants,  200 

(ii)  Other  confidential  communications  of  a  private  na- 
ture : 
(a)  Answers  to  confidential  inquiries,  203 
(V)  Confidential  communications  not  in  answer  to 
a  previous  inquiry,  207 

(c)  Communications  made  in  discharge  of  a  duty 

arising  from  a  confidential  relationsliip  exist- 
ing between  the  parties,  209 

(d)  Information  volunteered  when  there  is  no  con- 

fidential relationship  existing  between  the 
parties,  213,  286 
diflSculty  of  the  question,  215,  288 
(iii)  Information   given   to   any  public  officer  imputing' 
crime  or  misconduct  to  others,  220 
such  officer  must  have  some  jurisdiction  to  entertain 
complaint,  223 


634  GENERAL  INDEX. 

PRIVELEOED   OCCASIONS  — conaViuerf. 

(B.)    Communications  made  in  Self-Defence. 

(iv)  Statements  necessary  to  protect  defendant's  private 

interests,  225 
(v)  Statements  provoked  by  a  previous  attack  by  plain- 
tiff on  defendant,  228 
statements  invited  by  the  plaintiff,  230 
n.  Where  the  Defendant  has  an  Interest  in  the  Subject- 
matter  OF  the  Communication,  and  the  Person  to  whom 
the  Communication  is  made  has  a  Correspondikg  In- 
terest, 233 
•where  a  large  body  of  persons  are  interested,  237 
if  strangers  present,  the  privilege  -will  be  lost,  239 

III.  Privileged  Reports,  243 

(i)  Reports  of  Judicial  Proceedings,  243 
matters  coram  non  judice,  244 
reports  not  privileged,  249 
reports  must  be  accurate,  250 
no  comments  should  be  interpolated,  254 
an  accurate  report  may  still  be  malicious,  256 
(ii)  Reports  of  Parliamentary  Proceedings,  257 
(iii)  Other  Reports,  259 

suggestion  of  the  Select  Committee  of  the  House 
of  Commons,  261 

PRIVILEGE  OF  DOCUMENTS 

from  inspection,  517-519 

PRIVILEGE   OF  WITNESSES, 

as  to  self-criminating  evidence,  504,  534 
as  to  production  of  state  papers,  535,  536 

PROCEEDINGS, 

former,  456,  490 

after  judgment,  554 

in  the  Court  of  Appeal,  561 

in  the  County  Court,  565 

before  magistrates,  571 

after  verdict  of  guilty,  585 

PROCTOR, 

words  concerning,  30 

PROFANE  LIBELS,  394-403 

PROFESSION, 

words  injuring  the  plaintiff  in  the  way  of,  actionable  whether  spoken, 
64-81 
or  written,  21,  27-30 

PROFITS, 

loss  of,  is  special  damage,  293,  309,  313-320 

PROOF 

of  plaintiff's  special  character,  530 
of  publication,  531 
of  the  libel,  535 


GENERAL  INDEX.  635 

PROOF  —  continued. 

of  the  speaking  of  the  slander,  537 
that  the  words  refer  to  the  plaintiff,  540 

that  the  words  were  spoken  of  the  plaintiff  in  the  way  of  his  office,  pro- 
fession, or  trade,  541 

PROPRIETOR 

of  newspaper  liable  for  all  libels  contained  therein, 
civilly,  7,  157,  261,  391,  392 
criminally,  364,  365,  386 

PROSPECTIVE  DAMAGES,  317,  320 

PROSTITUTE, 

charge  of  being,  not  actionable,  if  spoken,  85 
charge  of  having  under  protection,  libellous,  24 

PROSTITUTION, 

■words  imputing,  to  a  single  woman,  84-87 
to  a' schoolmistress,  84 
to  the  shopwoman  of  a  trader,  84 
to  a  married  woman,  84-87,  312,  324 

PROTECTION   ORDER,  346 

PROVOCATION 

by  libel  to  a  breach  of  the  peace,  3,  373 

by  plaintiff's  conduct,  228,  306,  380 

by  previous  libels,  when  evidence  in  mitigation,  307,  380 

PUBLIC   ATTENTION, 

persons  inviting,  may  be  criticised,  51,  52 

PUBLIC   BENEFIT, 

when  a  defence  ou  trial  of  indictment  or  criminal  information,  389,  390 
650,  659 

PUBLIC   INTEREST,   MATTERS  OF, 
may  be  freely  commented  on,  34-52 
what  are,  41-52 
affairs  of  State,  42-44 
Government  patronage,  44 
debates  and  proceedings  in  Parliament,  42,  44 
petitions  to  Parliament,  43 
books  and  other  literary  publications,  48,  49 
paintings  and  works  of  art,  48,  49 
architecture,  48,  49 

advertisements,  placards,  circulars,  50,  51 
the  performances  at  places  of  public  entertainment,  49,  50 
the  conduct  of  persons  attending  a  public  political  meeting,  52 
management  of  public  institutions,  46,  47 
parochial  charity,  47 
ecclesiastical  affairs,  47,  48 
the  public  conduct  of  public  men,  34,  40,  41,  43 
persons  inviting  public  attention,  50-52 
newspaper  controversies,  50-52 


636  GENERAL  INDEX. 

PUBLIC  MEET^GS, 

reports  of  proceedings  at,  not  privileged,  241,  260-263 
comments  on  conduct  of  persons  attending,  permitted,  52 

PUBLIC  MEN, 
who  are,  41 

their  public  conduct  may  be  freely  discussed,  34,  40-43 
libels  on,  by  imputation  of  corrupt  motives,  37-39,  43 

PUBLIC   PERFORMANCES   AND   ENTERTAINMENTS 

may  be  the  subject  of  fair  criticism,  49,  50 
PUBLIC   POLICY, 

ground  for  refusing  to  produce  a  document,  535,  536 
PUBLICAN, 

libel  on,  31 
PUBLICATION,  150-168 

definition  of,  150 

must  be  to  a  third  person,  150,  152,  383 

plaintiif  must  prove  a  publication  by  the  defendant  in  fact,  153 

publication  per  alium,  155 

publication  in  a  newspaper,  157 

repetition  of  a  slander,  161 

naming  your  authority  now  no  defence,  162 

rule  that  every  one  repeating  a  slander  becomes  an  independent  slan- 
dei'er,  166 

exceptions  to  this  rule,  167 

by  sale  in  a  shop,  160,  384 

by  telegram  or  postcard,  151,  283,  284 

by  placard,  153,  536 

by  copying  from  another  newspaper,  159,  302,  303,  584 

by  mistake,  6,  153,  385,  387 

by  anticipation,  261 

by  contrivance  of  plaintiif  himself,  168,  231 

cannot  be  restrained  by  injunction,  13-16 

proof  of,  531 

proof  of,  where  libel  is  lost,  536 
PUBLISHER, 

who  is  liable  as,  156-166,  384-387 
PUFFING 

own  goods,  no  libel,  32,  33 
PUNISHMENT 

at  common  law,  374,  378 

under  s.  4  of  Lord  Campbell's  Act,  379 

under  s.  5,  379 

by  requiring  sureties  for  good  behavior,  378,  444 

for  a  blasphemous  libel,  394 

for  an  obscene  libel,  404 

for  a  seditious  libel,  412 

for  contempt  of  court,  428,  433,  434 

pillory,  394,  412 

what  may  be  shown  in  mitigation  of,  589 
PUNITIVE  DAMAGES,  6,  n.,  157,  n.,  292,  n. 


GEJTERAL   INDEX.  637 

Q. 

"QUACK," 

charge  of  being  a,  libellous,  29-31 

QUALIFIED   PRIVILEGE,  196-263 

cases  of  qualified  privilege  classified,  196 

I.   Where  Circumstances  cast  upon  the  Defexdaxt  the  duty 

OF    MAKING    A   CoMMUXICATION. 

(A.)    Communications  made  in  Pursuance  of  a  Duty  owed  to  Society,  198 
(i)  Characters  of  servants,  200 
(ii)  Other  confidential  communications  of  a  private  nature,  203 

(a)  answers  to  confidential  inquiries,  203 

(b)  confidential    communications   not    in   answer  to   a 

previous  inquiry,  207 

(c)  communications  made  in  discharge  of  a  duty  arising 

from  a  confidential  relationship  existing  between 
the  parties,  209 
((7)  information  volunteered  when  there  is  no  confiden- 
tial relationship  existing  between  the  parties,  213 
(iii)  Information  given  to  any  public  ofiicer,  imputing  crime  or 
misconduct  to  others,  220 
such  officer  must  have  some  jurisdiction  to  entertain  com- 
plaint, 223. 
(B.)   Communication  made  in  Self-Defence. 

(iv)  Statements  necessary  to  protect  defendant's  private  inter- 
ests, 225 
(v)  Statements  provoked  by  a  previous  attack  by  plaintiff  on 
defendant,  228 
statements  invited  by  the  plaintiff,  230 
II.  Where  the  Defendant  has  an  Interest  in  the   Subject- 
matter    OF    THE    Communication,    and    the    Person   to 
WHOM  the  Communication  is  made,  has  a  corresponding 
Interest,  233 
where  a  large  body  of  persons  are  interested,  237 
if  strangers  present,  the  privilege  will  be  lost,  239 
in.  Privileged  Reports,  213-263 

QUARTER  SESSIONS, 

power  to  punish  for  contempts,  442 

jurisdiction  to  try  indictments  for  libel,  374,  404,  574 

R. 

RAILWAY  COMPANY, 

placarding  conviction  for  infringement  of  by-laws,  173,  179 
may  be  sued  for  libel,  369 

"RASCAL," 

libellous,  22 

RATIFICATION,  361 

RE-ASSERTION  OF    SLANDER 
in  reply  to  inquirer,  230-233 


638  GENERAL  INDEX. 

REASONABLE  DOUBT,  178 

RECEIVERS 

appointed  by  Court  of  Chancery,  355 

RECEIVING  STOLEN  GOODS, 
charge  of,  actionable,  56,  59 
-what  a  sufficient  charge  of,  GO,  123 

RECOGNISANCES,  378,  444,  574 

RECORD, 

courts  of,  426-443 
courts  not  of,  444-447 

REDRESS, 

bond  fide  claim  for,  privileged,  220-228 

REGISTRY,  DISTRICT, 
issuing  writ  in,  454 

REJOINDER,  498,  613 

RELIGION, 

publications  against,  394-403 

RELIGIOUS   INTOLERANCE, 

charge  of,  libellous,  23 

RELIGIOUS   SECTS  AND   SOCIETIES, 

libels  upon,  376,  377,  381 

sentence  of  expulsion  from,  86,  87,  312,  319,  325 

excommunication,  59 

REMEDIES  FOR  LIBEL, 

civil  and  criminal,  9,  376,  390-393 

REMITTING   ACTION 

to  the  County  Court,  468 

REMOTENESS   OF   DAMAGES,  321 

damage  resulting  to  the  husband  of  the  female  plaintiff,  323 

damage  caused  by  the  act  of  a  third  party,  325 

not  essential  that  such  third  person  should  believe  the  charge,  327 

■wrongful  and  spontaneous  act  of  a  third  person,  328 

originator  of  a  slander  not  liable  for  damage  caused  by  its  repetition, 

329 
exceptions  to  this  rule,  331 

REPETITION  , 

of  slander  heard  from  another,  161-168,  328-333 

naming  informant  now  no  avail,  162,  165 

formerly  a  defence,  162 

hona  fide  repetition  to  person  calumniated,  167,  217,  219 

libellous  articles  reproduced  from  other  newspapers,  159,  302,  303,  584 

of  libel,  may  be  evidence  of  malice,  271,  n.,  273 

of  slander,  by  wife  to  husband,  152,  330,  332 

REPLICATION 

in  criminal  cases,  651,  660 


GENERAL  INDEX.  639 

REPLY, 

as  to  pleading,  496 

of  pardon  to  a  plea  charging  felony,  58,  497,  606 
to  plea  under  Lord  Campbell's  Act,  299,  497 
precedents  of,  605,  612,  630 

REPORTER, 

duty  of,  245,  247,  254 

REPORTS, 

(i)  Reports  of  judicial  proceedings,  243 

of  ex  parte  proceedings,  244 

of  matters  coram  non  Judice,  244 

must  be  accurate,  250 

no  comments  should  be  interpolated,  254 

an  accurate  i-eport  may  still  be  malicious,  256 

whole  should  be  considered,  27 
(ii)  Reports  of  parliamentary  proceedings,  257 
(iii)  Other  reports,  259 

suggestion  of  the  Select  Committee  of  the  House  of  Commons,  261 

REPUTATION 

defined,  150 
is  property,  17 

injury  to,  gist  of  action,  17-21 
of  plaintiff  in  aggravation  of  damages,  298 
in  mitigation  of  damages,  304 

RETRACTION,  299 

"  RETURNED   CONVICT," 

actionable,  58 

REVENUE   LAWS, 

charge  of  evading,  23,  n. 

REVIEWS  OF  BOOKS,   PICTURES,   &c., 
how  far  permitted,  36-41,  48 

RIDICULE, 

words  which  expose  a  person  to,  libellous,  21,  22 
as%  weapon  of  criticism,  37,  48 

"RIDING   SKIMMINGTON,"  9 

RIGHT   OF   ACTION 
not  assignable,  354 

ROBBERY, 

charge  of,  actionable,  56 

♦'ROGUE," 

libellous,  22 

not  actionable,  if  spoken,  61 

ROMAN   CATHOLICS, 

penal  statutes  against,  58 

libel  on  monks  and  nuns,  126,  377 

attacks  upon,  6,  44,  250,  260 


640  GENERAL  INDEX. 

ROMAN  LAW 

as  to  justification,  180 
as  to  malice,  184 

"ROUGH  MUSIC,"  9 

RULE   ABSOLUTE,  593 

RULE  NISI, 

for  a  criminal  information,  591 

RULE  OF  COURT, 

contempt  by  disregarding,  431 
RUMOR, 

existence  of,  no  justification  for  a  repetition  of,  165,  231-233,  271,  n., 
305,  306,  584 

except  bondjide  repetition  to  person  calumniated,  167,  217,  219 

when  evidence  in  mitigation,  305,  306 

false  rumors,  wilfully  circulated,  378 

"RUNAGATE," 

not  actionable,  61 


SALFORD  HUNDRED  COURT, 

jurisdiction  of,  in  slander  and  libel,  569 
costs  in,  338 

SATISFACTION,   ACCORD  AND,  489 

SCA NDA  L  UM  MA  GNA  TUM, 
statutes  of,  133-135 
who  may  bring  action  of,  135 
the  nature  of  the  words  to  support  the  action,  135 
venue  in  actions  for,  136 

SCHOOLMASTER, 

words  concerning,  66,  224 

SCHOOLMISTRESS, 

imputing  prostitution  to,  67,  84 

"SCOUNDREL," 

charge  of  being,  libellous,  23 

SECONDARY   EVIDENCE, 

when  libel  lost  or  destroyed,  536 

SECRETARY   OF    STATE, 

letters  to,  privileged,  196,  211,  222-224 
orders  issued  by,  absolutely  privileged,  196 

SECT, 

libels  on,  376,  377,  381 

SECURITY   FOR   COSTS,  346,  352,  466 

SEDITION, 

charge  of,  actionable,  121 


GENERAL  INDEX.  641 

SEDITIOUS  WORDS,  409-448 
defined,  409 
treasonable  words,  410 

words  defamatory  of  the  sovereign  himself,  413 
truth  no  defence,  414 

words  defamatory  of  the  king's  ministers,  415 
words  tending  to  subvert  the  government,  418 
words  defamatory  of  the  Constitution,  419 
latitude  allowed  to  political  writers,  420 
words  inciting  to  disaffection  and  riot,  421 
words  defamatory  of  either  House  of  Parliament,  422 
commitment  for  contempt,  423 
Colonial  legislative  bodies,  425 

words  defamatory  of  the  Superior  Courts  of  Justice,  426 
contempt  of  Court,  428 

wilful  disobedience  to  an  order  of  Court,  431 
attachment  and  committal,  433 
Colonial  Courts  of  Justice,  438 
words  defamatory  of  Inferior  Courts  of  Justice,  440 
contempt  of  an  Inferior  Court  of  Record,  442 
sureties  for  good  behavior,  444 
statutory  powers  of  Inferior  Courts,  445 
Ecclesiastical  Courts,  448 

no  justification  that  it  first  appeared  in  another  paper,  584 
whether  the  publication  is  a  seditious  libel  is  a  question  for  the  jury, 

420,  585 
copies  of,  may  be  seized  after  conviction  for,  590 

SELECT  COMMITTEE   OF  THE   HOUSE   OF  COMMONS, 

report  of,  on  the  law  of  libel,  662 
observations  on  such  report,  261,  391,  531 
SELF-DEFENCE, 

language  published  in,  is  privileged,  225-232 

SENTENCE,  589 

SENS  US  VERBORUM  EX  CAUsA  DICENDI ACCIPIENDUS  EST, 

108 
SERMONS, 

not  privileged,  6,  242 
unpublished,  criticisms  on,  47 

SERVANT, 

when  liable  as  publisher,  358 

employer,  when  liable  for  acts  of,  360-365,  385,  583 

charge  against,  when  privileged,  203,  209,  226,  275 

communication  to  employer  concerning,  when  privileged,  217 

giving  character  to,  200-203,  600 

delivery  of  libel  by,  not  knowing  contents,  359,  384,  585 

SERVICE  OF  THE  WRIT,  460 

SHAREHOLDERS, 

proceedings  at  meeting  of,  privileged,  238,  242 
reports  to,  privileged,  235,  242 

41 


642  GENERAL  INDEX. 

SHIP, 

libel  on,  34,  132 
slander  of,  357 

SHIPOWNER, 

words  concerning,  34,  132 

SHOPKEEPER, 

words  concerning,  actionable,  78-81,  226,  227 

SHOPMAN, 

said  to  have  scarlet-fever,  358 

SHOP  WOMAN, 

words  imputing  prostitution  to,  84 

SICKNESS 

is  not  special  damage,  309,  312 

SLANDER, 

defined,  1, 7 

distinguished  from  libel,  3,  18-21 

■when  not  actionable  without  proof  of  special  damage,  253,  308,  309 
I.  Words  imputing  an  indictable  offence,  54,  621 
early  eases  on  this  subject,  58 

the  charge  must  be  specific  and  precise,  60,  120-127 
the  crime  imputed  must  be  possible,  61 
n.  Words  imputing  a  contagious  disease,  62,  624 
III.  Words  spoken  of  the  plaintiff  in  the  way  of  his  office,  profes- 
sion, or  trade,  64 
such  words  must  affect  him  in  such  office,  profession,  or 

trade,  65 
imputation  of  professional  ignorance  or  unskilfulness,  67 
plaintiff  must  be  carrying  on  such  trade,  &c.,  at  the  time 

he  is  defamed,  69 
words  imputing  want  of  integrity  to  any  one  holding  an 

office  of  trust,  70 
words  concerning  clergymen,  72,  628 
words  concerning  barristers,  solicitors,  &c.,  74 
words  concerning  physicians  and  surgeons,  75,  627 
words  affecting  traders  in  the  way  of  their  trade,  77,  631 
imputations  of  insolvency,  78 

Imputations   of   dishonesty  and  fraud  in  the  conduct  of 
their  trade,  79,  633 
rV.  Words  actionable  only  by  reason  of  special  damage,  82 
words  imputing  immorality,  83 
words  imputing  unchastity,  81 
unsatisfactory  state  of  the  law  on  this  point,  86 
all  words  causing  special  damage  are  actionable,  87,  148 
repetition  of,  161-168,  328-333 
naming  informant,  162 

bona  fide  repetition  to  person  calumniated,  167,  217,  219 
re-assertion  in  answer  to  plaintiff's  inquiry,  230-233 
proof  of  the  speaking  of  the,  537 
precedents  of  pleadings  in  actions  of,  621-633 


GENERAL  INDEX.  643 

SLANDER  OF  TITLE,  OR  WORDS  CONCERXING  THIXGS,  137-149 

definition,  137 

I.  Slander  of  title  proper,  138 

actionable,  if  words  false  and  malicious,  and  if  special  dam' 

age  be  proved,  138 
proof  of  malice,  112 
11.  Slander  of  goods  manufactured  or  sold  by  another,  115 
other  words  producing  special  damage,  118 
precedents  of  pleadings  in  actions  of,  631-643 

SLANG  TERMS, 

question  for  jury  as  to  meaning  of,  110 
evidence  for  jury  as  to,  538 

SMALL-POX, 

charge  of  having,  not  actionable,  63 

SMUGGLING,  55,  n. 

SOCIETY, 

loss  of,  words  tending  to  cause,  22 
of  neighbors,  312 
of  husband,  312 

SODOMY,  84,  n. 

SOLICITORS, 

words  concerning,  74,  75 
libels  on,  29,  30,  99 

SOLICITING  ANOTHER  TO  COMMIT  A  CRIME, 

charge  of,  actionable,  56 

SORCERY, 

charge  of,  formerly  actionable,  59 

SPECIAL   CHARACTER, 
proof  of  plaintiff's,  530 
mode  of  averring,  473,  474 

SPECIAL  DAMAGE, 

when  essential  to  action,  18 

defined,  289 

words  causing,  82,  87,  148 

essential  in  slander  of  title,  138 

what  constitutes,  309 

must  be  specially  pleaded,  313,  474 

arising  after  action,  317 

where  the  words  are  actionable  per  se,  318 

where  the  words  are  not  actionable  per  se,  308 

remoteness  of,  321-333 

SPECIAL  JURY,  528 

SPEAKING  OF  THE  SLANDER,  PROOF  OF,  537 

SPEECHES 

in  Parliament,  reports  of,  35,  42,  186,  257 
of  counsel,  reports  of,  250-253 


644  GENEEAL  INDEX. 

SPIRITUAL  COURT, 

jurisdiction  of,  in  cases  of  defamation,  17,  59,  85,  86 

STAR  CHAMBER, 

decrees  of,  regulating  press,  10,  11,  13 
criminal  jurisdiction  of,  14 

STATEMENT   OF   CLAIM,  469-475 

joinder  of  causes  of  action,  458 

the  very  words  must  be  set  out,  101,  470 

averments,  what  necessary,  118,  473,  531 

innuendo,  100,  107,  538 

words  in  a  foreign  language,  470 

special  damage  must  be  specially  pleaded,  313,  474 

venue,  474 

particulars  of,  479,  609,  625 

demurrer  to,  475,  605 

precedents  of,  in  libel,  600,  601,  603,  607,  613,  615 

in  slander,  621,  624,  626,  628,  631,  632 
in  slander  of  title,  639,  641 

STATEMENT   OF   DEFENCE,  475,  480 
traverses,  481 

bond  fide  comment,  no  libel,  483 
privilege,  484 
justification,  485 
apology,  487,  621 
accord  and  satisfaction,  489 
previous  action,  490 
other  defences,  490 
payment  into  Court,  491 
counter-claims,  494 
judgment  in  default  of  pleading,  495 
precedents  in  libel,  601,  605,  609,  614,  616,  617,  618 

in  slander,  622,  623,  626,  629,  631,  633 

in  slander  of  title,  640,  643 

STATE   PAPERS, 

privilege  as  to  production  of,  535 

STATUE 

may  be  a  libel,  8 

STATUTE  OF  LBIITATIONS, 
plea  of,  455,  490 

STATUTES.     See  Appexdix  of  Statutes,  C,  664-683 
contents  of  such  Appendix,  664 

See  also  Table  of  Statutes  cited,  xlvii. 

Table  of  Rules  and  Orders  cited,  L 

STAYING  PROCEEDINGS  IN  ACTION,  479,  557,  564 

STEALING, 

what  amounts  to  charge  of,  61,  122 
goods  of  married  woman,  62,  96 


GENERAL  INDEX.  645 

STOCK-JOBBER, 

words  concerning,  81 

STOLEN  GOODS, 

charge  of  receiving,  56,  59,  60,  123 

STORY    PREVIOUSLY    TOLD    BY    PLAINTIFF    AGAINST    HIM- 
SELF, 25 
STRIKING  OUT  INTERROGATORIES,  509 

STRUCK   OFF   THE   ROLLS, 

charge  that  an  attorney  was,  or  ought  to  be,  7,  30,  75,  173,  205 

"  STRUMPET," 

charge  of  being  a,  not  actionable,  85 
except  in  London  and  Southwark,  59,  84 

SUBORNATION   OF  PERJURY, 
charge  of,  actionable,  56 

SUBSCRIBER  TO   A  CHARITY, 

statement  by,  respecting  the  officers  of  charity,  238,  239 
substance  of  charge,  537 

SUMMARY  JURISDICTION 

of  justices  to  require  sureties  for  good  behavior,  444,  574 

to  issue  warrant  to  apprehend  a  libeller,  571 

to  commit  for  trial,  573 

to  take  bail,  573 

truth  of  libel  may  not  be  inquired  into,  572 

in  cases  of  obscene  libels,  &c.,  405-407 

seizure  of  other  libellous  papers,  illegal,  574 

SUMMARY  PROCEEDINGS 

before  magistrates,  reports  of,  243-248 

SUMMING  UP 

in  a  civil  case,  550 
in  a  criminal  case,  585 

SUMMONS 

for  leave  to  plead  and  demur,  476 

for  particulars,  479,  608 

to  amend  a  pleading,  498 

for  leave  to  administer  interrogatories,  501 

to  strike  out  interrogatories,  509 

for  inspection  of  documents,  521 

for  a  commission,  527 

to  change  venue,  528 

for  a  special  jury,  528 

before  a  magistrate,  571 

SUPERIOR  COURTS, 

words  concerning,  426 
contempts  of,  428 

SUPERIOR  OFFICER, 

reports  to,  privileged,  194,  195 


646  GENERAL  INDEX. 

SURETIES 

for  good  behavior,  378,  444,  574 

SURGEOX, 

slander  of,  68,  76,  83 

libels  on,  29,  34 

proof  of  qualification  of,  530,  531 

SURPRISE 

as  ground  for  new  trial,  559 

SUSPICION, 

words  of  mere,  not  actionable,  57 

bond  fide  communication  of,  204,  217,  220,  222 

SWINDLER, 

charge  of  being  a,  libellous,  23 
not  actionable,  if  spoken,  61 

SYPHILIS, 

charge  of  having,  63 

T. 

TELEGRAM, 

publication  of  libel  by,  avoids  privilege,  151,  283,  284 

THEATRICAL  PERFORMANCES, 

criticism  on,  permitted,  49 

THEFT, 

imputations  of,  61.  122 

"  THIEVING,"  57,  n. 

THING, 

slander  of,  137-149 
libel  on,  32-34 

THREATENING 

to  publish  a  libel  with  intent  to  extort  money,  etc,  378,  379 
a  witness,  or  suitor,  contempt  of  court,  430 

TITLE, 

slander  of,  137-149 

precedents  of  pleadings  in  actions  of,  634-644 

TOWNSHEND 

on  Libel  and  Slander,  American  treatise,  18-21 

TRADE, 

libel  of  persons  in  the  way  of,  21,  30-34,  64-81 
humility  of,  no  obstacle  to  right  of  action,  77 
must  be  a  lawful  one,  81 

TRADE   PROTECTION    SOCIETY, 

circulars  of,  not  privileged,  213 

TRADERS, 

libels  on,  31-34 
slander  of,  77-81,  631 


GENERAL  INDEX.  647 

TRADERS  —  continued. 

imputation  of  fraud  and  dishonesty  in  trade,  79,  80,  633 

of  being  a  cheat  or  a  rogue,  80 

words  affecting  the  credit  and  solvency  of,  7,  78,  79 

imputations  on  the  goods  or  commodities  of,  32,  33,  79,  137,  145-148 

caution  to,  not  to  trust  a  certain  customer,  215,  218 

words  affecting  partnei's  in  trade,  32,  81,  365-307 

married  women  traders,  32,  346,  349 

a  trading  company,  32,  3G7-309 
that  the  commodities  of  one  trader  are  inferior  to  those  of  another,  33, 

145-148 
criticisms  on  advertisements  and  circulars  of,  34,  50,  51 
evidence  of  loss  of  profits  and  of  business,  314,  315,  319 

TRAVERSES,  481 

TREASON, 

charge  of,  actionable,  56 

words  cannot  amount  to  overt  acts  of,  410 

what  a  sufficient  charge  of,  121 

TREES, 

charge  of  girdling,  54,  n. 

TRESPASS 

to  land  of  plaintiff,  83 

to  building,  8 

to  persons,  9 

imputation  of,  not  actionable,  56 

TRIAL  IN  CIVIL   CASES, 
notice  of,  522 
entry  for,  522 

examination  of  witnesses  before,  526 
special  jury,  528 
change  of  venue,  528 

libel  or  no  libel  is  a  question  for  the  jury,  16,  55,  94,  98 
evidence  for  plaintiff,  530-543 
nonsuit,  543 

evidence  for  defendant,  545-549 
compromise,  550 
summing  up,  550 

the  libel  itself  must  be  produced  at,  535 
verdict,  551 
judgment,  552 
postponement  of,  529 
reports  of,  243-257 
comments  on,  44-46 
application  for  a  new,  556 
proceedings  after,  554,  555 

TRIAL  IN  CRIMINAL  CASES, 
pleading  to  the  indictment,  576 
certiorari,  578 


648  GENERAL  INDEX. 

TRIAL  IN   CREVIINAL   CASES  — continued. 
evidence  for  the  prosecution,  580 
evidence  for  the  defence,  582 
summing-up  and  verdict,  585 
proceedings  after  verdict,  585 
sentence,  589 
costs,  590 
of  criminal  information,  595 

"  TRUCKM ASTER," 

charge  of  being,  libellous,  24 

TRUSTEES   OF  A   CHARITY, 

words  concerning,  29,  370,  377 

TRUTH, 

as  a  justification  in  civil  proceedings,  169-178 

evidence,  how  strong,  178 

why  a  defence,  179 

as  a  justification  on  the  trial  of  an  indictment  or  criminal  iiiformation, 

178,  388-390 
no  justification,  unless  publication  was  for  public  benefit,  390 
beUef  in,  in  mitigation,  302,  589 


U. 

UNCHASTITY, 

charge  of,  not  actionable,  84:,  85 
unsatisfactory  state  of  law  as  to,  86,  87 

UNCIVIL  AVORDS, 

not  actionable,  18 

UNCONSCIOUS   PUBLICATION   OF  A   LIBEL,  154,  384-387,  617 

UNDER-SHERIFF, 

on  writ  of  inquiry,  has  power  over  costs,  337,  464 

UNFEELING   CONDUCT, 

charge  of,  libellous,  24 

UNNATURAL   OFFENCES, 

charge  of,  actionable,  56 
words  imputing,  124 

"USE   OF  THE  LAW," 
by  Bacon,  cited,  19 

V. 

"  VAGRANT,"  54,  n. 

VARIANCE 

between  words  laid  and  those  proved,  amendment  of,  471,  536,  537, 
545 


GENEKAL  INDEX.  649 


VENEREAL  DISEASE, 

charge  of  having,  actionable,  62,  63 

VENIRE  DE  NOVO,  588 

VENUE, 

plaintiff  to  select,  474 
application  to  change,  528 
grounds  for  changing,  529 
in  indictment,  578 

VERDICT 

in  civil  case,  551 
against  weight  of  evidence,  557 
in  criminal  case,  585 
proceedings  after,  in  a  civil  case,  552-561 
in  a  criminal  case,  585 
cures  certain  defects,  477,  586 

VESTRY   MEETINGS, 

reports  of  proceedings  at,  260 
imputation  on  parish  officers  at,  234,  237 

VEXATIOUS  INDICTMENTS  ACT, 

libel  not  vpithin,  571 

VICE, 

words  imputing,  actionable  if  written,  21 
not  if  spoken,  84-87 

"VILLAIN,   INFERNAL," 
libellous,  22 

VINDICATION 

of  defendant's  character  from  attacks,  228,  229,  230 

VINDICTIVE  DAMAGES, 

when  allowed,  292 

VOCALISTS, 

libel  on ,  34 

VOLENTI  NON  FIT  INJURIA,  168,  231 

VOLUNTARY 

affidavit,  not  a  judicial  proceeding,  193 

characters  of  servants  given  when  not  asked  for,  202 

VOLUNTEERING   COMMUNICATIONS 
in  discharge  of  duty,  213-219 
not  evidence  of  malice  where  duty  clear,  286-288 
caution  given  to  a  tradesman,  215 

VULGAR  ABUSE, 

mere  words  of,  not  actionable,  18,  109 


650  GENERAL  INDEX. 

w. 

WALL, 

libel  by  writing  or  drawing  upon,  283,  536 

WARRANT  OF   ARREST,  571 

"WELCHER," 

not  actionable,  61 

"  WHORE," 

charge  of  being,  not  actionable,  84,  85 
except  in  London  and  Southwark,  59,  85 

WIFE, 

and  husband,  345 

claim  by  husband  for  words  defamatory  of  wife,  347 

as  defendant,  350 

WILL, 

charge  of  secreting,  formerly  not  actionable,  54,  n.,  59 

"  WITCH," 

charge  of  being,  formerly  actionable,  59 

WITHDRAWING  A  JUROR,  550 

WITNESS 

cannot  be  asked  how  he  understood  the  language  published,  110,  538 

privilege  of,  191 

commission  to  examine,  before  trial,  526 

defendant  as  a,  534 

proof  of  previous  conviction  of,  546 

WOMEN, 

verbal  imputations  on,  84-87 

WORDS, 

action  on  the  case  for,  87-92 

actionable  per  se,  18 

imputing  crime,  must  be  precise,  120-126 

meaning  of,  how  affected  by  circumstances,  98,  107,  108 

general  terms  of  abuse,  not  actionable,  18,  109 

must  be  set  out  verhatim  in  the  Statement  of  Claim,  101,  470 

clearly  defamatory,  105 

prima  facie  defamatory,  107 

adjective,  126 

ambiguous,  107-116,  539,  548 

ironical,  8,  23,  114,  116,  539 

neutral,  109 

prima  facie  innocent,  112 

clearly  innocent,  116 

of  a  cant  or  slang  character,  110,  538 

indirect  imputations,  125 

of  suspicion,  57 

of  interrogation,  126,  471,  537 

in  foreign  language,  470 

application  of,  to  the  plaintiff  must  be  shown,  127-132,  540 


GENERAL  INDEX.  Q^l 


WORKMEN, 

action  for  threatening,  149,  358 

WORKS   OF   ART, 

criticisms  on,  48,  49 

WRIT, 

considerations  before,  449 
indorsement  on,  459 
service  of  tlie,  460 

WRIT  OP  ERROR,  587 

WRIT  OF  INQUIRY,  464,  465 

under-sherifE  has  power  over  costs,  337,  464 


University  Press :  John  Wilson  &  Son,  Cambridge. 


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UNIVERSITY  OF  CALIFORNIA  LIBRARY 

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